Mooresville Iga Foodliner

MOORESVILLE IGA FOODLINER 1055 Schwab Foods, Inc., d/b/a Mooresville IGA Food- liner and Local 725, Retail Clerks International Association, AFL-CIO. Cases 25-CA-9465-2, 25-CA-9648, and 25-CA-9762 17 July 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 28 September 1979 Administrative Law Judge Joel A. Harmatz issued the attached deci- sion. The Respondent and the General Counsel filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, fmdings, 1 and conclusions as modified, and to adopt his recom- mended Order as modified.2 We adopt the judge's fmding, for the reasons set forth by him, that the Respondent violated Section 8(a)(2) of the Act by unlawfully assisting the "Store Representative—Management Conference Committee." We also agree with the judge that the Respond- ent failed to satisfy its statutory obligation to bar- gain in good faith with the Union, the collective- bargaining representative of a unit of employees at its Mooresville store. As the judge's extensive and complete discussion of the facts establishes, during negotiations the Respondent demonstrated an intent to avoid any agreement with the Union. This intent was manifested by the Respondent's unlawful deal- ings with the Committee, its take-it-or-leave-it bar- gaining tactics, and its pervasive and serious 8(a)(1) and (3) violations, which led to a Gissel bargaining order covering the Mooresville unit. At the same time that the Respondent was adhering to bargain- ing proposals which retained the status quo or re- duced the benefits already enjoyed by employees The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy n not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cu-. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 The General Counsel excepts to the failure of the judge to provide a broad order rather than a narrow order as part of his remedy. We con- clude, in light of Respondent's history of unlawful conduct (see Schwab Foods, 197 NLRB 1068 (1972), and Schwab Foods, 233 NLRB 394 (1976)), together with the unfair labor practices found herein, that Respondent has "demonstrated a proclivity to violate the Act and unlawfully frus- trate the organizational desires of its employees." Hickmott Foods, 242 NLRB 1357 (1979). We shall therefore substitute a broad order for the narrow order recommended by the judge. prior to unionization, the Respondent was dealing with the unlawfully assisted Committee, which it repeatedly held out to employees as an alternative to union representation. The Respondent's bargain- ing tactics delivered the clear message to employ- ees that they would be penalized for selecting a union as bargaining representative, while at the same time the Respondent's away-from-the-table communications with employees emphasized that any improvements in terms and conditions of em- ployment would be obtained exclusively through the Committee. Given the totality of the Respondent's conduct here, including its bargaining tactics, we find it un- necessary to speculate concerning the motivation behind every proposal offered by the Respondent. Nevertheless, we cannot ignore the Respondent's pattern during negotiations of unilaterally deciding the amount of wage increases it would give em- ployees, presenting the Union with such decisions, and threatening that if not approved by the Union that the increases would be implemented anyway. As the judge accurately stated: Aside from the terms of the [wage] offers, Re- spondent's tactic of confronting the Union with them on an eleventh hour basis, with the characterization of "last offer," under self- serving declarations of impasse, and threats of implementation, was calculated to remove ef- fectively from bargaining the wage issue. The Union was forced to either accept implementa- tion, and thereby to acknowledge Respond- ent's right to unilaterally determine wage rates on a take it or leave it basis, or to accept the consequences of full or partial implementation. Indeed, Respondent's action, in having imple- mented its last minute December offer at the nonunion stores, and thereafter steadfastly op- posing full retroactivity at Mooresville with respect to the very benefits grant [sic] else- where, strongly suggested an intent to subvert bargaining to ends inimical to statutory obliga- tions. Beginning with the Union's organizational cam- paign and continuing throughout the negotiations, the Respondent repeated statements indicating the futility of having the Union as the employees' bar- gaining representative. Viewing these statements and the Respondent's course of bargaining in con- junction with its other unfair labor practices, we are satisfied that there are sufficient objective fac- tors to establish that the Respondent bargained in bad faith. Accordingly, we adopt the judge's find- ing that the Respondent engaged in surface bar- 284 NLRB. No. 120 1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD gaining in violation of Section 8(a)(5) and (1) of the Act.3 In addition, we fmd that the Respondent violated Section 8(a)(1) by prohibiting certain employees and nonemployee handbilling and picketing at its struck Mooresville store on 1 December 1977 and 17 February 19784 and by prohibiting similar activ- ity at its Martinsville store on 15 December. 3 Bal- ancing the Section 7 rights involved here against the property rights at stake, as Fairmont Hote1, 6 re- quires, we find in all three instances that the Sec- tion 7 rights prevail and that restrictions imposed by the Respondent were therefore unlawful. On 17 November, after a breakdown in negotia- tions for a contract covering the Mooresville em- ployees, the Union voted to strike. Strike activity occurred at all four of the Respondent's retail gro- cery stores, but only conduct at Mooresville and Martinsville is involved here. The Respondent's Mooresville store, an adjoin- ing, separately owned drug store, and their shared parking lot are rented from a disinterested third party. The Respondent's store occupies about 15,000 square feet and is open 24 hours a day. Cus- tomers and employees enter both stores from a common vestibule, a 20-by-20 foot square, indented area at the building's front. Abutting the vestibule is a canopy covered walkway which runs in front of the stores. Several vending machines are located along the walkway. Also, the Respondent's extra basket carts and various bulky seasonal merchan- dise, including bedding plants, shrubbery, peat moss, snow shovels, salt, and Christmas trees are stored and merchandised on the walkway. 7 Abut- ting the walkway is a parking lot. The parking lot area directly in front of the walkway is classified as a fire lane. The parking lot extends about 150 feet from the vestibule to the street.° It has two open- The instant consolidated complaint, including Case 25-CA-9465-2, alleges that the Respondent has unlawfully refused to bargain with the Union since 24 February 1978. An informal settlement signed February 1978, involving other unfair labor practice charges including refusal-to- bargain allegations, specifically states that the settlement "does not bar the introduction of evidence as to matters settled herein in further litiga- tion concerning alleged violations of the National Labor Relations Act, including but without limitation, any litigation involving Case 25-CA- 9465-2." We therefore find entirely proper the judge's reliance on events predating 24 February 1978 as background evidence in support of his finding that the Respondent failed to bargain in good faith since 24 Feb- ruary 1978. All events are in late 1977 or early 1978 unless otherwise indicated. 'All allegations of unlawful denial of access are limited by the consoli- dated complaint to actions involving "employees." 6 282 NLRB 139 (1986). 7 The record is not clear that any such merchandise was on the walk- way at the time the alleged unlawful conduct occurred. Pursuant to the lease agreement the Respondent and drug store are jointly responsible for maintenance and security of the property and maintenance of the parking lot. ings to the street for ingress and egress by custom- ers, employees, and suppliers, and is also accessible from the contiguous parking lot of a separate sport and hobby shop. Between the street openings to the parking lot are strips of grass, wide enough for two cars and about 60-feet long. With the exception of the alleged unlawful inci- dent at the Mooresville store on 1 December 1977 and 17 February 1978, the picketing and handbill- ing at Mooresville was limited to the entrances of the parking lot. On 1 December Union Representa- tive Ed Stahl, employee Sandy Kingham, and ion- employee Clara Rogers° began to picket and hand- bill in the vestibule/walkway area. After about 10 minutes, Respondent's vice president, Leisen, ad- vised Stahl that "you are not supposed to be pick- eting in front of this IGA store." Subsequently, after employee Kingham had departed, Leisen reappeared and told the pickets he would call the police if they did not leave. Stahl and Union Rep- resentative Al Sanford stayed in front of the store until a police cruiser arrived whereupon the two men moved to the parking lot entrance. On 17 February 1978 1° Sanford and striking Mooresville employees Lloyd Bales and Jeff Smith picketed and handbilled the vestibule/walkway area. An individual Sanford thought to be the as- sistant store manager emerged from the Respond- ent's store and stated that police were on the way and the pickets would have to leave. The pickets refused to move, whereupon Vice President Leisen was summoned to the scene. Leisen asked the pick- ets whether a new city ordinance had been passed allowing them to picket the vestibule, and threat- ened to have the pickets arrested if they did not leave. The group refused to move from the area until a police officer arrived shortly thereafter and threatened to arrest them if they did not remove themselves to the parking lot entrance. The pickets complied. The Martinsville store and adjacent 45-foot-wide parking lot is owned by the Respondent. The facili- ty is located at the intersection of two streets; the parking lot has an entrance on one street and exit on the other. The only nearby sidewalk runs along the farside of the street from the parking lot. On 15 December Union Representative Ed Stahl, three striking Mooresville employees, and several nonem- ployees picketed the parking lot openings and the space between them for a little more than an hour before being cautioned by police in a patrol car not 9 Rogers was an employee of a different supermarket and a member of the Union. 10 The judge inadvertently erred when he found that this incident oc- curred on "15 February" rather than 17 February, and that "Union Rep- resentative Stahl" rather than Sanford was present. MOORESVILLE IGA FOODLINER 1057 to obstruct traffic. About 10 minutes later they were approached by a person identifying himself as the chief of police. The alleged chief informed them that they had been expected, that there had been a town council meeting, and that they were not going to be able to walk on city property, but if they were peaceful, they could walk on the side- walks. Stahl apologized for being on city property and moved a couple of spaces. The chief said, "Well, you are on private property now and I don't believe the owner wants you to be on private property." Turning to the Respondent's owner, Bill Schwab, the chief asked, "isn't that right Bill?" Schwab agreed. Stahl said he believed there was an easement between the city and private property. The chief denied any knowledge of any easement and said if the pickets did not move to the sidewalk across the street, they would be arrested. The pick- ets then retreated to the sidewalk, but found "there wasn't anybody walking down the street" and they just were not effective at all and left." In Fairmont, supra, the Board reviewed NLRB v. Babcock & Wilcox Co., 12 and its progeny and de- termined that in such cases involving conflicts be- tween Section 7 rights and property rights, its task is "first to weigh the relative strength of each party's claim." 13 The Board found: If the property owner's claim is a strong one, while the Section 7 right at issue is clearly a less compelling one, the property right will prevail. If the property claim is a tenuous one, and the Section 7 right is clearly more compel- ling, then the Section 7 right will prevail. Only in those cases where the respective claims are relatively equal in strength will effective alter- native means of communication become deter- minative.14 Among the factors to be considered in, determining the relative strength or weakness of a property right are: the use to which the property in question is put, any restrictions placed on public access to the property or facility, and the size and location of the facility. 15 By way of example, the Board noted that a "single store surrounded by its own parking lot provided exclusively for the conven- ience of customers will have a significantly more compelling property claim" than "the owner of a large shopping mall who allows the general public " The parties stipulated that between 15 and 27 December, counsel for the Univm and the city attorney entered into an agreement, permitting the Union to picket at the Martinsville store on the "area defined as to [sic] easement" running along the lower edge of the parking lot. 12 351 U.S. 105 (1956). 13 Fairmont Hotel, supra at 142. 14 Ibid. " Ibid. to utilize his property without substantial limita- tion." Concerning the Section 7 right, among the factors to be considered in assessing its relative strengths and weaknesses are: the nature of the right asserted, the purpose for which it is being as- serted, the employer that is the target of the activi- ty, the situs of the activity, the relationship of the situs to the target, the intended audience of the ac- tivity, and, possibly, the manner in which the right is being asserted." By way of example, the Board noted that "organizational rights and the right to engage in primary economic activity at the situs of a dispute may be viewed as more compelling than handbilling and other informational activity at loca- tions other than the primary situs."19 At the Mooresville store, the property in ques- tion is the vestibule/walkway area. Access to this area is obtained from the parking lot which is maintained jointly by the Respondent and the ad- joining drugstore. There is no evidence that the vestibule/walkway area is limited to customers of the Respondent, or that access to the parking lot is restricted in any way. In fact, the Respondent has invited the general public to patronize its store and the vestibule/walkway area is open to virtually anyone. The record shows that the pickets did not pose a significant impediment to persons seeking to enter and leave the stores. In view of the substan- tially unrestricted access to the vestibule/walkway area and the dilution of the Respondent's property rights caused by the presence of the adjoining busi- ness, we find that the Respondent's property claim is a relatively weak one. The Section 7 right asserted at Mooresville is stronger than the one involved in Fairmont, supra. In that case, the nonemployees engaged in area- standards handbilling at the entrance to the Fair- mont Hotel urging the public not to patronize the hotel in furtherance of the union's labor dispute with Bakers of Paris, which supplied bakery prod- ucts to the hotel. The Board found that the Union's handbilling activity at the hotel had "no. . . vital link to the employees located on the [targeted] em- ployer's property" and was not at the "core of the purpose for which the NLRA was enacted." 19 In contrast, here the striking Mooresville employees engaged in picketing and handbilling at the situs of their dispute with their employer, urging customers of the Mooresville store not to patronize the Re- spondent in support of their strike brought on by faultering contract negotiations. This lawful and peaceful primary economic activity is the kind of 16 Ibid. 11 Ibid. 12 Ibid. 19 Id. at 143. 1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD conduct which the Board in Fairmont suggested would be viewed as a compelling Section 7 inter- est. Balancing the respective claims of the parties here, we fmd that the fundamental Section 7 right exercised by the employees and their Union out- weighs the attenuated property rights asserted by the Respondent at Mooresville. Accordingly, we conclude that the Respondent violated Section 8(a)(1) of the Act when it barred the Union from picketing and handbilling in the vestibule/walkway area at Mooresville,2° At Martinsville, the pickets were precluded by the Respondent from patrolling on the private property which joins the entrance and exit to the store's parking lot. As noted above, in Fairmont the Board found a single store surrounded by its pri- vate parking lot has a more compelling property right claim than the owner of a large shopping mall. Nevertheless, we find, on balance, that the Respondent's property claim at Martinsville is not stronger than the significant Section 7 right exer- cised by the striking employees in picketing at Martinsville. Like at Mooresville, the Respondent at Martinsville issued a general invitation to the public to enter its parking lot and patronize its store, and no restrictions were placed on public access to the property. Further, the Respondent's property claim at Martinsville concerns an area far removed from the store entrance, and there is no evidence of safety or other problems associated with the Union's activity at the entrance to the parking lot. That the striking employees were not employed at Martinsville does not substantially di- minish the relative strength of the Section 7 claim, since the strikers' employer was on that site. Under these circumstances, we find that the Section 7 in- terest asserted by the Mooresville strikers at Mar- tinsville is paramount to the relatively limited prop- 2° Because the rights asserted by the Union and the Respondent are not relatively equal, Member Babson finds it unnecessary to consider the availability of reasonable alternative means by which the Union could have communicated its message to its intended audience. Member Johan- sen considers the significant factor of reasonable alternative means of communication as he assesses the nature and strength of the Union's Sec. 7 claim. Fairmont Hotel, supra at 143. In the case of the Mooresville store, Member Johansen finds that the judge erroneously sustained an ob- jection to questioning by the General Counsel seeking to establish the Union's lack of success in reaching its target audience from the public entrance to the parking lot. The exclusion of this evidence notwithstand- mg, Member Johansen finds that, in view of all the circumstances, includ- ing limitations imposed on alternate site picketing and handbilling by the physical arrangement of points of ingress to egress to and from the store, the Sec. 7 interest clearly predominates. The judge dismissed the allegation concerning the 1 December incident on the grounds that the complaint alleged interference with "employee" pickets on that date and no employees were present when Leisen threat- ened to call the police. Contrary to the judge, we find that Leisen's state- ment to the pickets, including employee Kingham, that they were not supposed to picket in front of the store constituted interference with their right to engage in protected activity. In any event, we find that the issue of whether Leisen's subsequent threat to call the police interfered with Sec. 7 activity was fully and fairly litigated erty interest the Respondent retained in the area between the portals of its parking lot, and that the Respondent's conduct at Martinsville violated Sec- tion 8(a)(1) of the Act"- ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Schwab Foods, Inc., d/b/a Mooresville IGA Foodliner, Mooresville, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(d). "(d) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the attached notice for that of the administrative law judge. CHAIRMAN DOTSON, concurring in part and dis- senting in part. I agree with the judge, for the reasons discussed below, that the Respondent violated Section 8(a)(2) of the Act by recognizing, negotiating with, and otherwise assisting the "Store Representative-Man- agement Committee" at the time it was under a statutory duty to bargain with the Union regarding the employment terms of its Mooresville employ- ees. I would, however, only find a violation with respect to the Committee's activities at the Moores- ville store. Unlike my colleagues, I would reverse the judge's finding that the Respondent engaged in "surface bargaining" with no intention of reaching agreement. The judge acknowledged that here the "bad faith allegations are unaccompanied by cer- tain traditional indicia of bad faith such as unilater- al action; refusal to furnish requested, relevant in- formation; or a refusal to meet on a regular basis." Yet he found that the Respondent's hard bargain- ing to obtain the contract it wanted, including terms which did not improve the employees' lot or give them benefits greater than those received by their nonunion counterparts, violated Section 8(a)(5) and (1) of the Act. The record does not support this finding. 21 Given the paramountcy of the Sec. 7 interest at Martinsville, Member Babson finds it unnecessary to evaluate what reasonable alterna- tive means the strikers had to communicate their dispute. Member Johan- sen, as noted at fn. 20, supra, considers the reasonable alternative means of communication in addressing the nature and strength of a Sec. 7 right. At Martinsville Member Johansen finds that the record establishes the Union lacked reasonable alternative means of conveying its message and that the balance tilts decidedly in favor of the Sec. 7 interest. MOORESVILLE IGA FOODLINER 1059 I would also reverse the judge's finding that the Respondent violated Section 8(a)(1) by prohibiting certain employee handbilling and picketing at its struck Mooresville store on 17 February 1977 1 and by prohibiting similar activity at its Martinsville store on 15 December.2 Balancing the Section 7 rights involved here against the property rights at stake, as Fairmont Hotel,s requires, I would find that the property rights prevail and that restrictions imposed by the Respondent were therefore not un- lawful. 1. With respect to the Committee, the facts are briefly as follows: The Committee, created by the Respondent, first met in June 1976, a few months after the Board's decision ordering the Respondent to recognize and bargain with the Union as repre- sentative of its Mooresville employees. The Com- mittee consisted of two elected employee repre- sentatives from each of the Respondent's four stores, including Mooresville, serving 1- or 2-year terms. The Committee customarily met on a monthly basis with the Respondent's owner and president, Bill Schwab, and its corporate vice presi- dent, Don Leisen. All meetings were held at a fa- cility owned by the Respondent, on company time, during working hours. The employee representa- tives were paid for their time in attendance. Minutes of the committee meetings were pre- pared by Leisen and distributed to employees by the Respondent as attachments to "Crax and Fax," the Respondent's newsletter to employees also pre- pared by Leisen. As defmed by Leisen in the min- utes of the first meeting, the purpose of the Com- mittee was: to establish effective means of communication with store employees and management. In so doing, we hope to create better working con- ditions, and improve our store image, discover new ideas, and knit together effective store teams. All store employees are urged to use their representatives as their voice in Company affairs. Express your concerns, hopes and sug- gestions without fear of reprisal or hurting someones' feelings. Names are not used at the conferences. The minutes of committee meetings show that the Committee raised and considered employee re- quests and proposals concerning such matters as health and pension benefits coverage; sick pay; the length of shifts, breaks, and lunches; the adequacy of break and parking facilities; a credit union; pay- 1 All events are in late 1977 or early 1978 unless otherwise indicated 2 All allegations of unlawful denial of access are limited by the consoli- dated complaint to actions mvolving "employees." 3 282 NLRB 139 (1986). roll deduction; savings plans; layoff policies; mer- chandise discounts; merit pay incentives; night shift differentials; uniforms' and a dress code; seniority bidding for Sunday work; and vacation eligibility. The Respondent's officials participated in discus- sions of these matters and frequently granted the Committee's requests or at least agreed to explore changes in existing policy consistent with employee concerns. In some instances, where the Respondent was unwilling to give or could not afford all the benefits sought by the Committee, the Respondent offered alternatives. Thus, the Respondent said it would give "sick days (7 days) in lieu of sick pay [insurance covering payment of wages] (up to 26 weeks after the first 7 days)" if employees pre- ferred. The Respondent also offered prescription coverage if employees were willing to give up their current dental-insurance plan.4 A "Special Note" printed at the conclusion of the Committee's minutes of 10 November 1977 states: We encourage each and every employee to make use of the employee representative pro- gram. They are your voice and many success- ful ideas are the result of these meetings. Many employee fringe benefits have been brought about by requests made at the monthly meet- ings. Together, management and employees can make our stores better places to work. Know who your rep is and give them your thoughts and suggestions. It works for YOU. Another "Special Note" at the conclusion of the January 1978 committee minutes, distributed during the Mooresville strike with the February 1978 Crax and Fax stated: We encourage each and every employee to make use of the employee-management repre- sentative program. This way you have a voice in what your company does. Many accom- plishments have resulted from our meetings. More will happen again this year. YOU are the company. . . . management is only the steering wheel. These facts establish that the Committee routine- ly considered and frequently resolved matters of concern to employees, including those at Moores- ville, covering nearly the whole scope of the em- ployment relationship. Such matters are commonly considered and dealt with in collective bargaining. 4 According to the Respondent's minutes of the parties' 11 November 1977 bargaining session Frank Hahn, representing the Respondent, said that the Respondent "could not deal with a 'representative' and by-pass the Union," and acknowledged that what currently went on at committee meetings was "adjustment of grievances." 1060 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In fact, many of them were the subject of the con- current negotiations between the Respondent and the Union concerning the Mooresville store. The Respondent's recurring message to employees was that the Committee was the employees' representa- tive and that the proposals and questions raised by the Committee concerning the employment rela- tionship had brought about, and would continue to accomplish, employee-desired change in "[m]any employee fringe benefits." There can be no doubt on these facts that the Committee was "dealing with" the Respondent within the meaning of Sec- tion 2(5) of the Act.5 The consolidated complaint alleges, inter alia, that the Respondent unlawfully prohibited striking Mooresville employees from engaging in picketing and handbilling activities on its property in further- ance of the Mooresville strike, and that the Re- spondent failed to bargain with the Union in good faith regarding the employment terms and condi- tions of these same employees. The essence of these allegations is that the statutory rights of the Mooresville employees have been violated by the Respondent. Given this, and the fact that none of the employees at the Respondent's other three stores are represented by the Union or any other labor organization, the only reasonable interpreta- tion of the General Counsel's amendment alleging an 8(a)(2) violation is that the Respondent's "deal- ings with" the Committee were unlawful to the extent that they involved the Mooresville employ- ees. There is no clear allegation with respect to any activities involving the employees at any other store. 6 As to the Mooresville employees, the Re- spondent was, at all times pertinent to this case, ob- ligated to bargain with the Union as the Moores- ville employees' statutory representative. Despite this outstanding obligation, the Respondent encour- aged the Mooresville employees to look to the Committee as their representative, and bargained with the Committee concerning the employment terms of the Mooresville employees. On these facts I find that the Respondent's dealings with the Committee concerning the employment terms and conditions of the Mooresville employees violated Section 8(a)(2) and (1) of the Act. I would there- fore order the Respondent to cease and desist from such dealings. 2. Concerning the Respondent's alleged failure to bargain in good faith, before the advent of the Union the Respondent maintained a progressive pay system with annual wage reviews on employ- 'NLRB v. Cabot Carbon Co., 360 U.S. 203 (1959). 6 Smce there is no clear allegation in the complaint with respect to the other three stores, I make no finding as to the propriety of Committee activities with respect to these stores. ees' anniversary dates. In addition, each May the Respondent reviewed its wage structure and grant- ed an additional cost-of-living increase effective 1 May. In early May 1977, before negotiations began, the Respondent sought and received the Union's approval to grant unit employees the 6-percent cost-of-living increase planned for all of its stores 1 May 1977. The parties first met 4 August 1977. During the ensuing 10 months they held a total of 19 negotiating sessions before negotiations broke off 5 June 1978. In general the Union's initial proposals represent- ed improvements to employees' terms and condi- tions of employment. The Respondent countered with provisions which preserved the status quo, and in a few areas proposed terms which were dif- ferent or less favorable than those employees cur- rently enjoyed. In this regard, as highlighted by the judge, the Respondent insisted on maintaining the current number of holidays, health; welfare and pension benefits, night-shift premium policy, and vacation eligibility formula. The Union proposed maintenance of the existing lunch-break policy, which permitted employees to elect to take either one-half hour or an hour. The Respondent counter offered a uniform 1-hour lunch period, with 30 minutes permitted only with management approval. The Union eventually accepted the Respondent's proposal. The Union's initial proposed leave policy allowed employees to take 90 days' approved leave of absence before forfeiting any vacation pay. The Respondent, which in the past had permitted one employee to take 6 weeks' leave of absence with- out forfeiting her vacation, countered with a pro- posal for forfeiture of leave after any authorized leave of absence in excess of 30 days. In a later modification, the Respondent proposed forfeiture of vacation pay in any given year only if author- ized personal leave exceeded 30 days or sick leave exceeded 60 days. The Union rejected the Re- spondent's leave forfeiture proposal to the end. The Respondent sought a provision making poly- graph tests mandatory, arguing that it had "judi- ciously, discretly and effectively" used such tests in the past. The Union initially opposed this provi- sion, but acceded to its inclusion late in negotia- tions. The parties gave extensive consideration to the Union's dispute resolution procedure proposal at their second meeting of 5 August. The parties dis- agreed as to the time limit for filing and whether referral to arbitration could be unilateral or re- quired a joint determination. In subsequent meet- ings the parties considered at what point each side's grievance position had to be put in writing and whether different time requirements for filing MOORESVILLE IGA FOODLINER 1061 should apply depending on the subject matter of a grievance. After concessions by both sides, agree- ment on all provisions of the dispute procedure was reached at the seventh meeting of 13 Septem- ber 1977. The Respondent consistently opposed a union-se- curity clause, repeating many times that it felt strongly that employees should not be forced to choose between their job and the Union and that it was up to the Union to make its organization at- tractive to employees. At the final bargaining ses- sion of 5 June 1978 the Union deleted the union- security provision from its "package proposal." The Respondent initially rejected outright the Union's proposed dues-checkoff provisions. Later, the Respondent agreed to allow a union steward or business agent 2 hours a month to collect union dues on company premises and company time. Ulti- mately, the Union agreed to the Respondent's com- promise proposal. The Respondent rejected the Union's no-strike!- no-lockout provision and proposed alternative lan- guage which held the Union and its members liable for damages resulting from breach of this provi- sion. The Union adhered to its proposal through- out, and rejected the Respondent's later offer to delete the liability clause. The Respondent countered the Union's general management-rights clause with a broad clause which retained in management control of all rights not abridged by the agreement and reserved for management sole discretion in a comprehensive list of terms of employment. The Union proposed a second general clause, also rejected by the Re- spondent, and in the end agreed to a revised ver- sion of the Respondent's proposal. Concerning wages, the Union in its initial pro- posal of 4 August 1977 sought three 50-cent-per- hour increases scheduled for 1 May 1977, 1978, and 1979. The Respondent in its first counterproposal of 11 November offered wage increases on 1 Janu- ary 1978, consistent with Federal minimum wage requirements, and for 1 May 1978, consistent with the Respondent's past practice of giving an annual 6-percent increase. The Respondent rejected the Union's request for a guarantee that all employees would receive an increase on execution of the con- tract, but agreed to preserve or "red circle" the present pay rates of any employees whose rates under the Respondent's proposal would otherwise have decreased. Following the beginning of the strike, on 17 No- vember 1977, negotiations broke off until resumed with the Respondent's revised wage proposal of 23 December 1977. These revisions, as corrected at the 29 December bargaining session, included a 15- cent increase effective 1 January 1978 and held constant the increase proposed for 1 May 1978. The Respondent denied the Union's accusation that its proposed 1 January 1978 increase was based solely on the new Federal minimum wage levels ef- fective that date. The Respondent described its offer as fair, and expressed hope that it would be "attractive to the Union." When asked for the cost basis of its offer, the Respondent said, "cost is only one factor which the Company considered," and when asked about its past practice to raise all wages when the Federal minimum increased, said, "the Company probably would have adjusted some rates to keep approximately the same spread be- tween rates." The Respondent sought the Union's approval to implement the 1 January 1978 increase, indicating "there would have to be some explana- tion to employees as to why the raise was not given at Mooresville" at the same time it was given at its other stores. The Union withheld its approv- al, and the Respondent indicated it intended to im- plement its offer. Thereafter, by letter of 5 January 1978, the Respondent informed the Union that it had "decided to honor the Union's request not to implement its proposed wage increase at the Mooresville store" and that the only increase to be given at Mooresville were those required by the new Federal minimum. The Respondent imple- mented the proposed 1 January increase in full at its unrepresented stores. At the next bargaining session of 24 February 1978, the Respondent offered to give the increase proposed 29 December at Mooresville and the raise proposed for 1 May. The Union sought retroactiv- ity which the Respondent rejected. The Respond- ent adhered to the same wage proposal at the 30 March and 25 April bargaining sessions. At this latter meeting the Respondent reminded the Union of its policy to give a wage increase each 1 May and stated that it had given part of the 6-percent increase in January at its other stores, and wished to give the balance at all four stores on 1 May. The Union declined the Respondent's request to imple- ment the 1 May increase at Mooresville and the Respondent announced it intended to do so. Subse- quently, by letter of 2 May, the Respondent in- formed the Union it would delay implementation of the 1 May increase at Mooresville for "a few days" until after their next meeting scheduled for 8 May. At this meeting the Respondent met the Union's scaled down demands for the 1 May increase. At the meeting's end the parties remained apart on the increase for 1 January 1979—the Union sought a 10 to 20-cent-per-hour increase above the new Federal minimum effective 1 January, 1979; the Respondent proposed increases which mostly conformed with 1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the 25-cent-per-hour increase required by the new Federal minimum. Subsequently, the Respondent sought the Union's permission to implement its "last offer" at Mooresville. When the Union de- clined, the Respondent, by letter of 13 May, in- formed the Union that it could no longer withhold the wage increases from the Mooresville employees who had been paid less than other Company em- ployees at the Union's insistence since 1 January 1978. After the 1 May increase was implemented the parties met again as scheduled on 5 June. The Re- spondent made slight modifications to its wage pro- posal and agreement was reached on many out- standing issues. Negotiations broke off with the parties' positions on a no-strike/no-lockout clause, vacation leave policy, wages, and contract term at a stalemate. The judge, based in large measure on his sub- stantive evaluation of the Respondent's proposals, found that the Respondent attempted to manipulate the bargaining process to convey to employees the futility of union representation and to foreclose sur- vival of the Union. The judge took particular of- fense to the fact that many of the Respondent's proposals did not improve, and in some cases made more restrictive, the employees' terms and condi- tions of employment. He found the degree of in- flexibility the Respondent exhibited on union secu- rity, dues checkoff, no strike/no lockout, dispute resolution procedures, management rights, and major economic matters, provisions which he found "ordinarily combine to constitute the heart of an agreement," contributed to an environment not conducive to agreement. He also minimized any agreements reached on these issues by attrib- uting them largely to union concessions. The Respondent's insistence on the provisions fo- cused on by the judge does not demonstrate a fail- ure by the Respondent to bargain in good faith. First, the Supreme Court has held it is not a viola- tion for an employer to bargain on such matters as management-rights and no-strike clauses, provisions the judge characterized as going to the heart of an agreement, any more than it would be for an em- ployer to bargain for provisions favorable to it.7 Further, Section 8(d) of the Act expressly provides that the duty to bargain in good faith does not "compel either party to agree to a proposal or re- quire the making of concessions." Here, over the course of 10 months the Respondent, as well as the Union, engaged in hard bargaining. Because of concession by both sides, agreement was reached on all but four issues before negotiations broke 7 NLRB v. American National Insurance Co, 343 U.S. 395, 407-409 (1952). See also Rescar, Inc., 274 NLRB 1, 2 (1985). down.8 The Respondent acted within the clear lan- guage of the statute by standing firm on its final offer which rejected the Union's union-security and no-strike provisions and set terms and conditions at the level it wanted. It is no more culpable for an employer to strenuously oppose a union-security clause or insisting on provisions maintaining the status quo, than for a union to demand a union-se- curity clause and improved benefits. By fmding otherwise the judge improperly suggests that un- lawful intent must be imputed to any employer that does not agree to provisions which would obvious- ly strengthen the union's hand. Finally, the Board has repeatedly held that it will look to bargaining tactics, and not the reasonableness of a party's pro- posals, to determine whether that party has bar- gained in good faith.° Accordingly, the Respond- ent's press to maintain the status quo in some areas, diminish benefits in others, and keep scheduled wage increases for unit employees on a par with their nonunion counterparts, is not evidence of a desire to frustrate the collective-bargaining proc- ess.1° Consistent with its past practices of giving annual 1 May cost-of-living adjustments of around 6 percent and adjusting its wage scale in compli- ance with the Federal minimum, the Respondent over the period in question gave three increases on 1 May 1977, 1 January 1978 and 1 May 1978. Each time the Respondent notified the Union in advance that these increases were scheduled and gave the Union an opportunity to agree to the increases for the employees it represented. The Union agreed to the 1 May 1977 increase which took effect before negotiations began," but withheld its approval of 8 A party's intent to satisfy its bargaining obligation cannot be assessed by reviewing which side made the most or deepest concessions. Such matters are far more a function of economic strength than intent to reaching agreement. 9 Rescar, supra at 2; Reichhold Chemicals, 277 NLRB 639 at 640 (1985). 10 See Reichhold, supra at 640. The judge's finding that the Respondent was less than candid at the bargaining table is unsupported. To the contrary, the Respondent was forthright in stating that its objective was to get the contract it wanted, not just one it could live with. It provided the Union with all the rele- vant information requested and in response to questions about its 29 De- cember 1977 wage proposal candidly admitted that cost had not been the only factor considered and that it probably would have adjusted some wage rates in response to the Federal minimum wage levels in order to keep approximately the same spread between rates. Further, I do not find that the unfair labor practices of the Respondent which predated these negotiations by more than 5 years provide any factual basis for question- ing the veracity of the Respondent's stated concern for the interest of employees as a basis for rejecting the Union's demand for union security, checkoff; and, in early negotiations, access to the addresses of new em- ployees. I find the judge erroneously cast .doubt on the Respondent's good faith by mischaracterizing its bargaming table conduct. " I find incredible the judge's gratuitous finding that the Union ap- proved the 1 May increase, "unaware that assent would diminish Re- spondent's flexibility at the bargaining table." MOORE§VII,LE IGA FCCTILINER 1063 the next two increases to unit employees. In these instances the Respondent, which had planned the increases for all stores, honored the Union's re- quest, implemented the increases only at its unrep- resented facilities, and continued to bargain about the wages of unit employees. As a result, after 1 January 1978 unit employees' wages fell behind those at the nonunion stores. Finally, when the Union failed to accept the Respondent's fmal offer on 28 May 1978, which brought wages at Moores- ville in line with those at the nonunion stores, the Respondent implemented the 1 May 1978 increase at Mooresville. These facts belie the judge's finding that the Respondent manipulated negotiations to undermine employee support for the Union. There is no evidence, and no contention, that the Re- spondent's decision to grant increases at its non- union stores was motivated by other than legiti- mate business considerations. The Respondent's proposal to implement the three increases at Mooresville simultaneous with implementation at its nonunion stores comports with its apparent past practice of maintaining a uniform wage scale throughout its stores. The fact that unit employees' wages fell behind those of their nonunion counter- parts while the Union held out for more money through negotiations cannot reasonably be inter- preted as evidence that the Respondent unlawfully attempted to frustrate agreement. Finally, I disagree with the judge that materials printed in Crax and Fax, a leaflet written and dis- tributed by the Respondent for employees, and the Respondent's dealings with the Committee while union negotiations were underway, further exhibit the Respondent's unlawful state of mind at the bar- gaining table. To begin with, there is no conten- tion, and the judge does not find, that any of the materials printed in "Crax and Fax" were violative of Section 8(a)(1) of the Act. To the contrary the propaganda recited by the judge as tainting the Re- spondent's bargaining conduct because it was "cal- culated to dissuade employees from continuing sup- port of the union," i.e., apparently accurate factual reports of store closings after unionization, rumors of union-dues increases, and Board-reported decer- tification statistics, is precisely the type of material this Board has routinely found protected by Sec- tion 8(c) of the Act. Concerning the Respondent's ongoing meetings with the Committee, there is no evidence linking the lack of progress in union ne- gotiations with the Respondent's unlawful conduct away from the bargaining table. Further, the Union knew about the Committee and did not object to or demand that the Respondent cease its support of the Committee." Accordingly, I disagree with the judge that the Respondent's away-from-the-table conduct provides sufficient additional evidence to warrant a finding that the Respondent failed to bar- gain in good faith. In sum, I find that the totality of the circum- stances establishes that the Respondent acted within the clear language of Section 8(a)(5) by en- gaging in hard bargaining and refusing to make concessions to union demands. I would therefore reverse the judge and dismiss that portion of the complaint alleging that the Respondent refused to bargain in good faith. 3. Finally, concerning the access question, the facts show that on 17 November, after a break- down in negotiations for a contract covering the Mooresville employees, the Union voted to strike. Strike activity occurred at all four of the Respond- ent's retail grocery stores, but only conduct at Mooresville and Martinsville is involved here. The Respondent's Mooresville store, an adjoin- ing separately owned drugstore, and their shared parking lot are rented from a disinterested third party. The Respondent's store occupies about 15,000 square feet and is open 24 hours a day. Cus- tomers and employees enter both stores from a common vestibule, a 20-by-20 foot square, indented area at the building's front. Abutting the vestibule is a canopy covered walkway which runs in front of the stores. Several vending machines are located along the walkway. Also, the Respondent's extra basket carts and various bulky seasonal merchan- dise, including bedding plants, shrubbery, peat moss, snow shovels, salt, and Christmas trees are stored and merchandised on the walkway." Abut- ting the walkway is a parking lot. The parking lot area directly in front of the walkway is classified as a fire lane. The parking lot extends about 150 feet from the vestibule to the street." It has two open- ings to the street for ingress and egress by custom- ers, employees, and suppliers, and is also accessible from the contiguous parking lot of a separate sport 12 The subject of the Committee was raised by the Respondent at the patties' 11 November 1977 bargaining session. The Respondent sought to clarify how the Union's proposed article 24, "Other Agreements," would impart on its practice of meeting with the Committee. According to the Respondent's minutes of this meeting, the Union, following a caucus by both sides, indicated it would be satisfied to let the union steward be the employee representative, "[sluice the employees elect the employee rep- resentative now, and will elect the steward as well, this would avoid the problems of by-passing the Union." The Respondent saw this proposal fraught with problems, and it was agreed instead that once a contract was reached, Mooresville employees would no longer be included in Committee meetings. 13 The record is not clear that any such merchandise was on the walk- way at the time the alleged unlawful conduct occurred. Pursuant to the lease agreement the Respondent and drugstore are jointly responsible for maintenance and security of the property and maintenance of the parking lot. 1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and hobby shop. Between the street openings to the parking lot are strips of grass, wide enough for two cars and about 60-feet long. With the exception of an alleged unlawful inci- dent at the Mooresville store on 1 December, dis- cussed below, the picketing and handbilling at Mooresville was limited to the entrances of the parking lot and went uninterrupted until 17 Febru- ary. On that date, Union Representative Al San- ford and striking Mooresville employees Lloyd Bales and Jeff Smith picketed and handbilled the vestibule/walkway area. An individual Sanford thought to be the assistant store manager emerged from the Respondent's store and stated that police were on the way and the pickets would have to leave. The pickets refused to move, whereupon Vice President Leisen was summoned to the scene. Leisen, who heard customer complaints about the picketing on his arrival, asked the pickets whether a new city ordinance had been passed allowing them to picket the vestibule, and threatened to have the pickets arrested if they did not leave. The group refused to move from the area until a police officer arrived shortly thereafter and threatened to arrest them if they did not remove themselves to the parking lot entrance. The pickets complied. The Martinsville store and adjacent 45-foot-wide parking lot is owned by the Respondent. The facili- ty is located at the intersection of two streets; the parking lot has an entrance on one street and exit on the other. The only nearby sidewalk runs along the farside of the street from the parking lot. On 15 December Union Representative Ed Stahl, three striking Mooresville employees, and several nonem- ployees picketed the parking lot openings and the space between them for a little more than an hour before being cautioned by police in a patrol car not to obstruct traffic. About 10 minutes later they were approached by a person identifying himself as the chief of police. The alleged chief informed them that they had been expected, that there had been a town council meeting, and they were not going to be able to walk on city property, but if they were peaceful, they could walk on the side- walks. Stahl apologized for being on city property and moved a couple of spaces. The chief said, "Well, you are on private property now and I don't believe the owner wants you to be on private property." Turning to the Respondent's owner, Bill Schwab, the chief asked, "Isn't that right Bill?" Schwab agreed. Stahl said he believed there was an easement between the city and private property. The chief denied any knowledge of any easement and said if the pickets did not move to the sidewalk across the street, they would be arrested. The pick- ets then retreated to the sidewalk, but found "there wasn't anybody walking down the street" and they just were not effective at all and left.15 In Fairmont, supra, the Board reviewed NLRB v. Babcock & Wilcox Co., 16 and its progeny and de- termined that in such cases involving conflicts be- tween Section 7 rights and property rights, its task is "first to weigh the relative strength of each party's claim." 17 The Board found: If the property owner's claim is a strong one, while the Section 7 right at issue is clearly a less compelling one, the property right will prevail. If the property claim is a tenuous one, and the Section 7 right is clearly more compel- ling, then the Section 7 right will prevail. Only in those cases where the respective claims are relatively equal in strength will effective alter- native means of communication become deter- minative." At the Mooresville store, the property in ques- tion is the vestibule/walking area. The only access to this area is through the parking lot which is maintained jointly by the Respondent and the ad- joining drugstore, for the benefit of their respective customers and employees, not the public at large. The vestibule/walkway area is relatively small given the size of the Respondent's store, and the fact that it is adjoined by a drugstore. The vestibule/walkway area serves around the clock as the sole entry and exit point for customers and em- ployees of the Respondent. It also serves as the entry and exit point for customers and employees of the drugstore. The canopy over the walkway serves to protect these pedestrians from the ele- ments as they enter and leave the stores. Space for customer and employee passage through the vestibule/walkway area is limited by the presence of vending machines and the Respondent's practice of storing extra basket carts on the walkway. The Respondent has a valid interest in minimizing con- gestion in this area to accommodate unimpeded access. The presence of individuals picketing and distributing literature in this area is inconsistent with this interest and would tend to interfere with the atmosphere normally maintained by the Re- spondent. When customers complained to manage- ment about the picketing and handbilling activities, the Respondent had reason to believe that normal traffic flow was impaired and to intervene. Under these circumstances, I find that by excluding the 15 The parties stipulated that between 15 and 27 December, counsel for the Union and the city attorney entered into an agreement, permitting the Union to picket at the Martinsville store on the "area defined as to [sic] easement" running along the lower edge of the parking lot. 16 351 U.S. 105 (1956). 17 Fairmont Hotel, supra at 142. 18 Id. at 142 (fn. omitted). MOORESVILLE IGA FOODLINER 1065 striking employees engaged in the picketing and handbilling from the privately owned vestibule!- walkway area connecting the Respondent's store to the private parking lot, the Respondent was assert- ing a compelling private property right in limiting the use to which its property was put." The Section 7 right asserted at Mooresville is stronger than the one involved in Fairmont, supra. In that case, the nonemployees engaged in area- standards handbilling at the entrance to the Fair- mont Hotel urging the public not to patronize the hotel in furtherance of the union's labor dispute with Bakers of Paris, which supplied bakery prod- ucts to the hotel. The Board found that the Union's handbilling activity at the hotel had "no . . . vital link to the employees located on the [targeted] em- ployer's property" and was not at the "core of the purpose for which the NLRA was enacted." 2° In contrast, here the striking Mooresville employees engaged in picketing and handbilling at the situs of their dispute with their employer, urging customers of the Mooresville store not to patronize the Re- spondent in support of their strike brought on by faltering contract negotiations. The lawful and peaceful conduct by striking employees at the pri- mary situs of the dispute, while more compelling than the Section 7 activity in Fairmont, does not match the strength of the compelling property right, detailed above, that the Respondent was as- serting in an effort to keep the entrance of its store clear of congestion to guarantee free access to its customers to the store. I therefore conclude that the Respondent at Mooresville did not violate the Act when it barred the striking employees from picketing and handbilling in the vestibule/walkway entrance to its store. Because the rights asserted at Mooresville by the Respondent and the Union are not relatively equal, I deem it unnecessary to con- sider whether reasonable alternative means by which the Union could have communicated its message were available and would dismiss the com- plaint allegation that the Respondent's conduct at Mooresville violated Section 8(a)(1) of the Act.21 Fairmont Hotel, supra at 142. 20 Id. at 143. 21 My colleagues reverse the judge's dismissal of the allegation that the Respondent violated Sec. 8(aX1) when on 1 December Vice President Leisen informed Union Representative Stahl personally, m the presence of striking Mooresville employee Sandy Kingham, "you are not supposed to be picketing in front of this IGA store," referring to the vestibule/walkway area at Mooresville. They find that Leisen's statement constitutes a demand to leave the area and falls within the ambit of un- lawful interference. I find no demand was made in the presence of an em- ployee and adopt the judge's finding that the evidence fails to substanti- ate the complaint allegation that the Respondent unlawfully interfered with "employee" pickets. Moreover, I find for the reasons set forth above, that given the comparative strength of the Respondent's property right as compared with the Sec. 7 right, no violation occurred even if Leisen's remark could be construed as a demand and was overheard by At Martinsville, the employee pickets were pre- cluded by the Respondent from patrolling on the private property which joins the entrance and exit to the store's private parking lot. As noted above, in Fairmont, supra, the Board found a single store surrounded by its private parking lot presents a particularly strong property right. The property right in question at Martinsville is just the type re- ferred to in Fairmont. I therefore fmd the Respond- ent was attempting to preserve a substantial private property right when it prohibited patrolling by the pickets at Martinsville. The Section 7 interest exercised by employees at Martinsville is attenuated by virtue of the fact that Martinsville is not the primary situs of the dispute; the disputed issue concerns only the employment terms and conditions of the Respondent's Moores- ville employees, not those at Martinsville; and the individuals exercising these rights were striking em- ployees from Mooresville, not employees of the Martinsville store. Under these circumstances, I find the property right asserted by the Respondent at its Martinsville store, by removing striking Mooresville employees from the private property between the portals of its parking lot, stronger than the Section 7 interests as- serted by the Mooresville strikers. Accordingly, I find it unnecessary to evaluate what reasonable al- ternative means the strikers had to communicate their dispute, and would dismiss the allegation that the Respondent's conduct at Martinsville violated Section 8(a)(1) of the Act.22 Kingham. Accordingly, I agree with the judge's finding that this com- plaint allegation should be dismissed. 22 I would not issue a broad order in this case. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection 1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD To choose not to engage in any of these protected concerted activities. WE WILL NOT refuse to bargain collectively and in good faith concerning rates of pay, wages, hours, and other terms and conditions of employ- ment with Local 725, Retail Clerks International Association, AFL-CIO as the exclusive bargaining representative of the employees in the bargaining unit described below. WE WILL NOT coerce or restrain our employees from engaging in picketing or handbilling where conducted on our premises under condition pro- tected by the Act. WE WILL NOT assist or support the Employee Representative-Management Conference Commit- tee, or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with Local 725, Retail Clerks International Association, AFL-CIO, as the exclusive representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time employees of the Respondent employed at its Mooresville facility exclusive of all meat department em- ployees, professional employees, guards, the store manager, the assistant store manager, and all other supervisors as defmed in the Act. WE WILL withdraw recognition from the Em- ployee Representative-Management Conference Committee unless and until certified in an election conducted by the National Labor Relations Board. SCHWAB FOODS, INC, D/B/A MOORESVILLE IGA FOODLINER J. Frederick Gatzke, Esq., for the General Counsel. Thomas 0. Magan, Esq. and Larry R. Downs, Esq. (Kahn, Dees Donovan & Kahn), of Evansville, Indiana, for the Respondent. Charles E Mercer, of Indianapolis, Indiana, on behalf of the Charging Party. Robert Karmel, Esq. (Biro, Karmel & Rosenfeld), of Chi- cago, Illinois, for the Charging Party. DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge. This consolidated proceeding' was heard by me on January 15, 16, 17, and 18, 1979, in Indianapolis, Indiana, on an initial unfair labor practice charge filed on December 20, 1977, and a consolidated complaint issued on May 31, 1978, which, as amended, alleged that Respondent inde- pendently violated Section 8(a)(1) of the National Labor Relations Act by restricting employees in their rights to engage in lawful picketing; violated Section 8(a)(2) of the Act by dominating, assisting, and rendering unlawful as- sistance to an employee committee; and violated Section 8(a)(5) of the Act by engaging in collective bargaining in bad faith and with no intention of reaching agreement. In its duly filed answer, Respondent denied that any unfair labor practices were committed. After the close of hear- ing, briefs were filed on behalf of the General Counsel and the Respondent. On the entire record in this proceeding, and from my direct observation of the demeanor of the witnesses while testifying and having considered the posthearing briefs, I make the following FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is an Indiana corporation engaged in the retail sale of groceries and related products from its fa- cilities located at Mooresville and Martinsville, Indiana. During the 12-month period preceding issuance of the complaint, a representative period, Respondent sold and distributed products, the gross value of which exceeded $500,000, and purchased goods and materials valued in excess of $50,000 from Wetterau Foods, Inc., a wholesal- er, which had received such goods and materials from States other than the State of Indiana. The complaint alleges, the answer admits, and I find that, at all times material, Respondent is and has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The complaint alleges, the answer admits, and I find that Local 725, Retail Clerks International Association, AFL-CIO is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. The complaint was amended at the hearing to include additional allegations that the "Store Representative- 1 The complaint in the instant proceeding had been consolidated with Cases 25-CA-10016, 25-CA-10016-2, and 25-CA-10016-3; the latter covered by a separate complaint issued by the Regional Director for Region 25 on August 21, 1978. By Order dated October 11, 1978, those cases were consolidated with the instant proceeding but during the course of the hearing on January 18, 1978, a settlement agreement resolv- ing the issues presented therein was executed. See „It. Exh. I. Pursuant thereto the cases were severed and the hearing with respect to the issues raised therein adjourned sine die pending compliance with the settlement agreement. MOORESVILLE IGA FOODLINER 1067 Management Conference Committee (Conference Com- mittee) constitutes a labor organization within the mean- ing of the Act. The Conference Committee is constituted by elected representatives from each of Respondent's four stores who normally meet on a monthly basis with William Schwab, Respondent's owner and president, and Don Leisen, Respondent's vice president. In the course of these meetings, the employee representatives are en- courage to communicate complaints and suggestions rela- tive to their working conditions. These comments are considered by management and according to claims made by the latter "many successful ideas are the result of these meeting [sic]. Many employee fringe benefits have been brought about by requests made at the month- ly meetings." Thus, the Committee constitutes an "em- ployee representation committee . . . in which employ- ees participate and which exists for the purpose, in whole and in part, of' dealing with . . . [the Employer] concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work." Ac- cordingly, I find that the Conference Committee is a labor organization within the intendment of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues 1.Whether Respondent independently violated Section 8(a)(1) of the Act by alleged interference with picketing of its premises by its employees in furtherance of an eco- nomic strike. 2. Whether Respondent violated Section 8(a)(2) and (1) of the Act by dominating and rendering proscribed assistance to the Conference Committee, referred to above. 3. Whether Respondent violated Section 8(a)(5) and (1) of the Act by a course of conduct during collective- bargaining negotiations, through which it manifested bad faith, engaged in surface bargaining, and demonstrated an unwillingness to reach agreement on a contract. B. Preliminary Statement By way of background, it is noted that Respondent's Mooresville store is one of four separate grocery oper- ations maintained in the State of Indiana by the Respond- ent, with the most distant stores only 25 miles apart. 3 To date, there is no history of collective bargaining for em- ployees at Respondent's Morgantown store or its two stores located in Martinsville. It was in 1974 that the Union commenced an organiza- tional campaign at Mooresville. Respondent's unlawful interference with that campaign led to the filing of unfair labor practice charges, and a decision by the National Labor Relations Board on March 29, 1976, wherein Re- spondent was directed to "recognize and bargain with Local 725, Retail Clerks International Association, AFL- CIO, as the exclusive collective bargaining representative of. . . all full-time and regular part-time employees em- 2 See G.C. Exh. 124. 3 Martinsville is approximately 17 miles distant from Mooresville and Morgantown is 7 miles from Martinsville. ployed by Respondent at its Mooresville, Indiana, facili- ty, excluding all meat department employees, guards, and supervisors as defined in the Act." 4 Thereafter, on March 25, 1977, the United States Court of Appeals for the Seventh Circuit issued a judgment enforcing the Order of the Board.3 In the interim shortly after issuance of the Board's Order, on June 3, 1976, the Conference Committee, a concept originating with Don Leisen, Respondent's vice president, met for the first time. The committee was composed of two employees elected from each of Re- spondent's four stores. The purpose thereof was defined by Leisen in the minutes of that meeting as follows: The purpose of these regularly scheduled monthly meetings is to establish effective means of comnumi- cation with store employees and management. In so doing, we hope to create better working conditions, and improve our store image, discover new ideas, and knit together effective store teams. All store employees are urged to use their representatives as their voice in Company affairs. Express your con- cerns, hopes, and suggestions without fear of repris- al or hurting someones feelings. Names are not used at the conferences. Thereafter, following the courts enforcement of the Board's bargaining order, negotiations opened on August 4, 1977. The parties met at some 13 negotiating sessions before bargaining was broken off on November 15, 1977. Two days later, on November 17, 1977, the union mem- bership voted to strike Respondent. In addition, unfair labor practice charges alleging that Respondent refused to bargain in good faith were filed on behalf of the Union in Case 25-CA-9465. Subsequently, the parties again met on December 29, 1977, while the charges were pending, and again on Feb- ruary 24, 1979, pursuant to a settlement of those charges.3 The parties met on four additional occasions, March 30, April 28, May 8, and June 5, 1978, before negotia- tions broke off completely, with the parties failing to achieve agreement on a contract. Nonetheless, the strike ended on June 9, 1978, when strikers made an uncondi- tional offer to return to work. C. Concluding Findings 1. The committee As heretofore indicated, the Conference Committee consisted of two representatives elected by employees at each of Respondent's four stores. These representatives met customarily on a monthly basis, with no less than Respondent's president and owner, Bill Schwab, and Re- spondent's corporative vice president, Don Leisen. All meetings were held at a facility in Martinsville, Indiana, owned by the Respondent, and were conducted on com- pany time, during working hours, with the representa- 4 223 NLRB 394. 5 See G.C. Exh. 120. 6 See G.C. Eidi. 113. 1068 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tives paid for their attendance. Minutes thereof were pre- pared by Leisen and distributed by Respondent to all employees at each store. As heretofore found, the Com- mittee affords more than a mere communication link be- tween Respondent and its employee because it consti- tutes a forum whereby complaints, grievances, and sug- gestions relative, at least in part, to terms and conditions of employment are raised, considered, and acted on by the highest level of management. Establishment of the Committee was foreshadowed by organizational efforts at two of Respondent's four stores. 7 In the course of those campaigns, Respondent was found to have engaged in pervasive and flagrant in- cursions upon the statutory organizational rights of its employees. While combatting in the courts the remedies invoked by the Board in consequence of its illicit behav- ior at Mooresville, the Company conceived the Confer- ence Committee, which had no existence prior to 1976. The Committee first met on June 4, 1976, a few months after the Board had issued its Order in Schwab Foods, 223 NLRB 394, on March 29, 1976, designating the Union as exclusive collective-bargaining representative of certain employees at the Mooresville store_ During the period covered by the instant complaint, and following the Sev- enth Circuit's placing its imprimatur on the Union's status as exclusive statutory representative, Leisen and Schwab continued to meet on a monthly basis with the employee representatives, including those from the ap- propriate collective-bargaining unit herein, to distribute minutes of those meetings to all such employees, and to treat with the representatives with respect to snch mat- ters as uniforms, immunization, Christmas party, payroll deductions, savings plan, job descriptions, employee pur- chase discounts, college assistance, credit union, pension plan, dress code, breakroom inadequacy, prescription cost benefits,8 night-shift differential, vacation eligibility, length of workshifts, seniority bidding for Sunday work, and sick pay benefits. The General Counsel contends that Respondent violat- ed Section 8(a)(2) and (1) of the Act by dominating and interfering with the administration of the Committee and rendering it unlawful assistance and support. In this con- nection it is noted that Respondent is on record as har- boring strong union animus, and there is no avoiding the conclusion that the Committee emerged therefrom as a means of assuaging employees with an alternative to union representation. Nonetheless, Leisen's admission that the Committee was his idea is no substitute for the absence of record proof that he either structured the Committee by dictating the election procedure or basis of employee representation, or that he, or any other agent of Respondent, specifically laid down restrictions on the proper role or responsibility of any designees of 'In addition to the campaign at Mooresville, in 1971 Local 167 of the Meat Cutters and Packing House Workers, affiliated with Amalgamated Meat Cutters and Butcher Workers of North America, embarked on an organizational campaign at one of Respondent's Martinsville stores. In 1972, the Board held that Respondent engaged in serious unfair labor practices in connection with that campaign. See Schwab's Food, 197 NLRB 1068 (1972). 8 Apparently after May 1978, meetings were conducted on a 2-month basis See minutes of May 1978, G C. Exh. 128. the employees serving on that Committee. Yet even if that were not the case, and record facts substantiated that Respondent did have such a role in the initial formu- lation of the Committee, such action would have oc- curred in advance of the 10(b) cutoff date. Within the 10(b) period, the Committee, as far as can be ascertained from this record, consisted of representa- tives elected by employees without Employer interfer- ence, whose representative action was carried to man- agement without prior influence by the latter. Although I am convinced, as shall be seen below, that the Commit- tee was unlawfully assisted, the evidence of domination, although meagre, rests entirely on time-barred matter.8 With respect to the question of assistance, it is noted that before and after the 10(b) cutoff date, Respondent continued to meet with the Committee, including elected representatives from the Mooresville store at times when it was under a duty to bargain with the Charging Party as exclusive agent for employees at the latter location. There can be no stronger evidence of proscribed assist- ance than that supplied by the Employer's recognition and negotiation with one labor organization at a time when it is under a statutory duty to recognize another. In addition, support furnished the Committee through meetings conducted on company time, with payments to employee representatives, and through the preparation and distribution of minutes of those meetings by the Re- spondent dramatically conveyed to employees the Em- ployer's preference as to the means by which their terms and conditions of employment should be ascertained. This was underscored directly by comments in the mate- rial published by Respondent and distributed to the em- ployees, including those at Mooresville, encouraging them to look to the committee as the vehicle through which their working conditions would be enhanced." Respondent thereby engaged in unlawful assistance vio- lative of Section 8(a)(2) and (1) of the Act. 2. The issue of subjective bad faith a. Preliminary statement The charge of subjective bad faith in this proceeding arises in the context of some 19 formal negotiating ses- sions, during the 10-month course of which the parties exchanged a plethora of written communications both at and away from the bargaining table. The General Coun- sel charges that the failure to reach agreement was at- tributable to the intransigence of the Respondent, its fail- ure to bargain in good faith, and its disposition to engage in surface bargaining with no intention of reaching agreement. 9 The formation of the Committee herein cannot be the basis of a find- mg of unlawful domination because it occurred more than 6 months prior to the filing of any unfair labor practice charge in this proceeding. See Rennselaer Polytechnic Institute, 219 NLRB 712 fn. 5. Although the evi- dence does disclose that representatives of employees serving as the Committee were compensated for time spent in sessions and that these meetings were held at a company facility, on worknig time, such factors do not alone add to a case of unlawful domination See Speigel Trucking Co., 225 NLRB 178, 179 (1976). 1-9 See, e.g., G.0 Exh. 124, minutes of Committee meeting, December 1977. MOORESVILLE IGA FOODLINER 1069 It is true that the designation of a labor organization as exclusive representative furnishes no assurances to em- ployees that their economic lot will be improved, remain the same, or be diminished through free collective bar- gaining, if that process is unblemished by a party's bad faith. Thus, Section 8(d) defmes the duty to bargain as "the performance of the mutual obligation of the em- ployer and representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, other terms and conditions of employment or the negotiation of an agreement. . . ." To fulfill this obligation, "the parties are obligated to do more than merely go through the formalities of negotiation. There must be a serious intent to adjust differences and to reach an acceptable common ground. . . ."11 Where, as here, the employer has adopted a course of rigidity at the bargaining table in a number of areas, the line between legitimate hard bargaining and that which is consciously calculated to frustrate employee designation of a statutory representative is often thinly drawn. "The problem in essentially to determine from the record the intention or state of mind of the [Employer] in the matter of [its] negotiations with the Union. . . such de- termination is a question of fact to be determined from the whole record."12 The inquiry is a delicate one and not lacking in con- straint. For the Act does not compel either party to agree to a proposal or to make a concession." Further- more, the trier of fact may not sit "in judgment on sub- stantive terms offered by parties negotiating in good faith."" These principles of nonintervention preclude a per se approach that would threaten the free and inde- pendent system of collective bargaining envisaged by the Act. At the same time, however, the Board, with court approval has observed that recalcitrants might well draw on them as the cutting edge by which employee designa- tioin of a statutory representative is finally scaled to nulli- ty. The caution to be exercised to assure against such manipulation of the bargaining process was succinctly stated in Sweeney & Co. v. NLRB, 437 F.2d 1127, 1134 (5th Cir. 1971) (citing NLRB v. Herman Sausage Co., 275 F.2d 229 at 231-232 (5th Cir. 1960)): The obligation of the Employer to bargain in good faith does not require the yielding of positions fairly maintained.. . . ' • ° [W]hile the Employer is assured these valuable rights, he may not use them as cloak. In approach- ing it from this vantage, one must recognize as well that bad faith is prohibited though done with so- phistication and fmesse. Consequently, to sit at the bargaining table, or to sit almost forever, or to make concessions here and there, could be the means by which to conceal a purposeful strategy to make bargaining futile or fail. Hence, we have said 1 Continental Insurance Co., 495 F.2d 44, 47-48 (2d Cir. 1974). 12 NLRB v. National Shoes, 208 F.2d 688, 691-692 (2d Cir. 1953). 13 NLRB v. American National Insurance Co., 343 U.S. 395 (1952). 14 See, e.g., NLRB v. Wright Motors, 603 F.2d 604 (mem.) (7th Cir. 1979). in more colorful language it takes more than mere "surface bargaining" or "shadow boxing to a draw," or "giving the Union a run-around while purporting to be meeting with the Union for the purpose of collective bargaining." As should be apparent from the above principles, it is one thing to bargain hard, yet quite another to approach the table with a predetermination to frustrate employee choice by drawing the line on flexibility so as to assure that any agreement reached is well within an area pre- cluding survival of the chosen representative. b. The Negotiations The contract discussions opened formally on August 4, 1977, and broke off after 19 sessions on June 5, 1978. During the course thereof the parties conducted omnibus negotiations, both at the table and via telephone and the mail. In this instance, the bad-faith allegations are unac- companied by certain traditional indicia of bad faith such as unilateral action; refusal to furnish requested, relevant information; or a refusal to meet on a regular basis. Nonetheless Respondent's commitment to a course of hard bargaining reflected a degree of inflexibility as to provisions that ordinarily combine to constitute the heart of an agreement to such a degree as to raise doubts whether Respondent sought simply a favorable contract or to accomplish through "negotiation" what it could not secure during the underlying organization campaign. At the first formal bargaining session on August 4, 1977, the parties reviewed the Union's written contract proposal, presented to Respondent earlier on June 20, 1977. Respondent's initial reaction was to state opposi- tion to a number of provisions and, as shall be seen below, it held firm on many of these issues throughout the negotiations, that is, unless the Union receded earlier. Thus, with respect to the noneconomic issues, Respond- ent registered the following positions on August 4, 1977: 1. Opposed contract language applying any term there- of to "successors, lessees and assigns."" 2. Opposed a union shop. 3. Opposed checkoff of union dues." 4. Advised that it would propose its own management- rights clause. 5. Advised that it would propose its own no-strike, no- lockout clause. 6. Opposed union proposal whereby employees on ap- proved leave of absence of less than 90 days would not forfeit vacation pay. 7. Opposed union proposal affording employees option of taking one-half or 1 hour for lunchbreak. 8. Opposed union proposal of 31 days' probationary period indicating it would insist on 90 days. 9. Opposed union proposal authorizing leave of ab- sences for the purpose of conducting union business." 15 The Umon later agreed to delete such language. 16 Although this position was consistently maintained by Respondent, it did subsequently propose that the Union be authorized to collect dues through a union representative who would be afforded access to the store once per month for that purpose. 17 Ultimately the Company agreed to a limited provision approving, leaves of absences only for employees attending the Union's annual con- vention. 1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10.Opposed a union proposal precluding the Employ- er from requiring employees to take polygraph tests. 11.Opposed a union proposal permitting union mem- bers to wear union buttons while on duty." 12.Opposed payment of severance pay under any con- ditions. 13.Opposed checkoff of funds on behalf of employees who elected to save through the Union's credit union. 14.Opposed a provision requiring Respondent to fur- nish the names and addresses of new hires." Also on August 4, the Company presented its manage- ment-rights clause. That proposal preserved in manage- ment a variety of rights and was draft in broad, compre- hensive terms. 2° Nonetheless, after a limited nonsubstan- live modification, the Union eventually accepted the Company's proposal. On August 5, 1977, the Company proposed its own no-strike clause," which, inter alia, precluded employees from handbilling or using the media to further any kind of economic pressure against the Employer, its owners, managers, or merchandise. The Company insisted on, and the Union opposed, this aspect of the Company's proposal throughout and no agreement was ever reached on the no-strike clause. At the negotiation session of August 5, the parties en- gaged in extensive discussion of the grievance arbitration proposal. The Company announced that among things a short time limit on the filing of grievances would be sought and that it was of the view that the parties should be denied the right to invoke arbitration independent- iy.22 On November 11, 1977, the Company put forth its written position on all open noneconomic issues." It continued to flatly oppose union security, dues checkoff, overtime, time and a half for work on the sixth day of the workweek, and for work in excess of 8 hours daily and double time for Sunday work. The Company ad- hered to its position against a night-shift premium. It op- posed the Union's proposal for holiday pay, countering with an offer six holidays, and rejected the Union's pro- posal for vacation eligibility, countering with its own proposal of 1 week's vacation after 1 year's service, 2 weelcs after 2 years' continuous employment, and 3 weeks after 10 years of continuous employment. The Company adhered to its counterproposal on management rights, polygraph test, probationary employees, no-strike, no-lockout, and separation pay. It did agree to allow em- ployees to wear union buttons at work, a concession con- sistent with what the statute requires. 18 Ultimately the Employer agreed to this provision, which was merely reflective of the rights enjoyed by employees wider the Act. 43 Respondent later accepted the Union's proposal in this regard. 2° See G.C. Exit 19. 24 See G.C. Exh. 21. 32 With respect to time limitations, the Union's initial proposal sought a 30-day time limit The Company on August 5, proposed a 3- to 4-day limit on filing. Ultimately, the parties agreed to time limits of 5 days for discharges and 7 days for all other grievances, except wage claims that would be subject to a 30-day limitation. The Union ultimately agreed to the Union's proposal that an arbitrator be designated "jointly." See G.C. Exh. 132. 22 See G.C. Exh. 61. Apart from those issues which the Company stuck to its guns, refusing to make a concession, it is noted that on February 24, 1978, the Company while opposing a checkoff, agreed to allow a union representative 2 hours each month to collect dues on the Company's premises. With respect to its no-strike proposal the Company agreed to drop a section imposing liability on the Union "and its members" for damages resulting from violation thereof. There was no change in its position on lie detec- tor, separation pay, successors, store closing, credit union, etc. At this negotiation session, the Union dropped its demand for separation pay and a successor- ship clause. On June 5, 1978, at the last bargaining session, the Company submitted to the Union its fmal position. 24 In that document Respondent showed no movement on the question of union security and reiterated its opposition to checkoff. The Company adhered to its position on no- strike, no-lockout With respect to Sunday overtime, the Company backed off on its firm resistance and offered time and a half for Sunday work. The Company contin- ued to resist the Union's demand for an increase in the number of holidays by addition of a personal holiday. The Company proposed that vacation eligibility not be impaired by approved sickness or injury leaves exceeding 60 days. Other approved leaves not exceeding 30 days would not affect vacation eligibility under the Compa- ny's proposal. However, approved leaves of absence of greater length would disqualify the employee from vaca- tion entitlement for that year. With respect to probation, the Company agreed to accept the Union's compromise proposal to a 60-day base period, to be increased to 90 days in individual cases at the Company's option. No movement was evident with respect to the Company's position on mandatory lie detector tests. By way of summary, prior to the breakdown in negoti- ations on June 5, 1978, the Company bargained hard with respect to the above areas, while making conces- sions in certain areas and entering agreements on specific proposals. It was my impression, however, that in most areas when this occurred, the agreements were made possible in most instances by efforts on the part of the Union to accommodate the Company's opposition to original union proposals. On many occasions the Union receded, so as to abandon requests for provisions custom- arily found in collective-bargaining agreements. None of this, even considering the Company's unyielding position on union security and persistent opposition to checkoff, would alone suffice to establish that the Company was guilty of subjective bad faith. At the same time, however, the Company's posture on major economic matters reflected a hold-the-line ap- proach lending itself to a clear signal that employees would gain little, if not lose, by their designation of a Union as their bargaining representative. Thus, with re- spect to key economic sectors of the negotiations conces- sions were scant, and Respondent rigidly adhered to its preexisting policy in a number of areas, including pen- sion, health, and welfare, number of holidays, night-shift 24 See G.C. Exh. 105. MOORESVILLE IGA FOODLINER 1071 premium, and the vacation eligibility benefit formula. Indeed, the Company's overall position in these areas tended to reflect a downgrading of certain benefits avail- able to employees prior to the advent of the Union. Thus, with respect to vacation eligibility, the Company's employee handbook, though defining many aspects of the vacation pay policy, made no reference to the possi- bility of an impaired vacation entitlement attributable to excused leaves of absence. Consistent with the absence of any such restriction, Rose Young, an employee assigned to the Mooresville store in the summer of 1977 took 6 weeks of personal leave, but was not penalized in terms of her vacation eligibility by reason of this absence. Nonetheless, under the Respondent's consistently main- tained position in negotiations, employees on personal leave, though authorized for an excess of 30 days, would lose their vacation for that year. In addition, with re- spect to lunch periods, although under Respondent's prior practice, employes were allowed, at their option, to select either one-half hour or 1 hour, the Company insist- ed that lunch hours be set at 1 hour, with 30 minutes permitted only with management approval. Respondent's resistive approach in the above areas was matched by its stance on wages. Prior to the commence- ment of negotiations, Respondent had maintained a step- rate, progressive pay system with advancement on a clas- sification basis. Movement between wage levels was based on periodic reviews, made on each annual anniver- sary date of the individual's employment, or earlier as management determined. According to Leisen, Respond- ent's vice president, with respect to new hires, it was Re- spondent's practice to terminate employees if they were not entitled to a wage increase on conclusion of their 90, day trial period. Furthermore, the Company's handbook recites that, "Increases are granted in accordance with the wage scale when a person works the amount of time designated and his work performance is average or better." In addition to the step-rate increase system, each May the Company reviewed its wage structure and granted a cost-of-living increase or annual wage adjust- ment on May I. Just prior to the commencement of ne- gotiations, the Company decided to grant a 6-percent in- crease to employees in its four stores on May 1, 1977. In connection therewith, union approval of this general in- crease was sought and obtained. With this a tactical pat- tern emerged, whereby the Respondent would unilateral- ly determine increases that it intended to grant employ- ees, and then present such determinations to the Union, threatening that if not approved by the latter, the in- creases would be implemented anyway. This posture of course placed the Union in the position of endorsing the Company's unilateral determination of wage rates, even though the increases would reduce wage gains to be achieved through bargaining, or of withholding approval and thereby foreclosing participation of Mooresville store employees in benefits to be enjoyed at the non- union stores. More specifically, the overall pattern of bargaining with respect to wages discloses that three wage propos- als were made by the Company during the entire course of negotiations. The first came on November 11, 1977. Significantly the increases proposed therein were de- ferred to January 1 and May 1, 1978. The only employ- ees who would receive an increase prior to May 1, 1978, were those whose prenegotiation wage level fell below $2.65 hourly, the new federally guaranteed minimum wage that was to become effective on January 1, 1978. Because cashiers who had completed their probationary period and all employees in the stocker classification would, under the Employer's proposal receive no in- crease until May 1, 1978, the Union, at the November 15, 1977 session, sought assurances that all employees would receive some form of increase on execution of a contract. The Company resisted any such guarantee. 25 Also at that session, the Union charged that the wage rates pro- posed by the Company were less than some Schwab em- ployees were actually earning at the time. Despite this charge, the Company declined to make a further propos- al upgrading its offer, indicating instead that it would be willing to "red circle present employees, so that they would not go down in pay under the new wage scale." Finally, the increases to be effective on May 1 under the Company's proposal involved a 6-percent upgrading and as such was entirely within the framework of Respond- ent's practice of giving such increases each year at that time. After conclusion of the November 15, 1977 session, a strike vote was taken and a strike initiated on November 17, 1977. Unfair labor practice charges were also filed by the Union alleging that the Company refused to bargain in good faith. Notwithstanding the foregoing, no revision was made in the Company's wage offer until December 23, 1977. By letter of that date, over signature of Frank Hahn, Re- spondent's attorney and principal negotiator, the Compa- ny forwarded a proposed wage increase, which was to become effective on January 1, 1978.r Pursuant thereto negotiations resumed on December 29, 1977. On that date, the Union was for the first time informed that the December 23 proposal contained an error. The correc- tion actually reduced the amounts effective May 1, 1978, as originally offered. As for this latter date, the increases offered were identical to those in the Company's No- vember 11 proposal. However, it did include at 15-cent offer to be effective January 1. At the December 29 bar- gaining session, the Company denied that this proposal was founded solely on the new Federal minimum wage level to be effective January 1. Nonetheless, the Compa- ny admitted that it intended to give a similar increase to its other stores, describing the offer as "fair" and express- ing the hope that it would be "attractive to the Union."2 6 It is also noted that when the Union requested inforniation about the cost basis for the new offer, the Company refused, explaining that "cost is only one factor which the Company considered." Further indica- tive of Respondent's lack of candor with respect to this proposal was its response to the Union's inquiry as to 25 At this session, the Union inquired whether the Company would allow the Mooresville store to participate in the general increases normal- ly given on May 1. The Company responded "that the employees in Mooresville would get exactly What was negotiated in the contract, and nothing else." See R Exh. 1(k), p. 3. 28 See R. Exh. 1(m). 1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD whether it was the Company's practice to raise all wages when the Federal minimum wage level increased. The Company replied that "the Company probably would have adjusted some rates to keep approximately the same spread between rated." Later, during the same session the Union was informed that the Company wished to implement its new wage offer on January 1, 1978. The Company pointed out that if the Union refused to approve, "there would have to be some explanation to the employees as to why the raise was not given." The Company argues that it had the right to implement its "fmal offer," because the Compa- ny had made the offer and the Union rejected it. Before the meeting closed, the Union signified its objection to implementation and was informed that the Company in- tended to implement its offer. However, by letter of January 5, 1978, over signature of Arthur Donovan, another attorney representing the Company, the Union was informed that "the Company decided to honor. . . [the union] request that it not im- plement its proposed wage increases at the Mooresville store. In that letter it was represented that "the only wage increases given effective January 1, 1978 at Mooresville were those required by the new minimum wage law."27 The wage offer was implemented in full at Respondent's three unorganized stores. Thereafter, the unfair labor practice charges filed by the Union in Case 25-CA-9465 were resolved by an agreement on the part of Respondent, inter alia, to bar- gain in good faith. Pursuant thereto, the formal bargain- ing resumed at formal negotiation sessions held on Feb- ruary 24, March 30, April 28, May 8, and June 5, 1978. During the February 24, 1978 session, the Company made a counterproposal in which it indicated that there was no change in the Company's position, but expressed its willingness to implement the raise offered on Decem- ber 29 at Mooresville and to give the raise proposed on May 1, 1978. The Union then raised the question of ret- roactivity, the Company, though indicating a willingness to discuss, opposed retroactivity, explaining that it would be unwise to agree thereto because the Union then would have no incentive to reach agreement. At the March 30, 1978 bargaining session, the Compa- ny indicated that its wage offer of December 29, 1977, remained unchanged, stating that "the Company's objec- tive in negotiation was not what it could 'live with,' but what it wanted in the contract." A further bargaining session was held on April 28, 1978. The Company at that time presented its proposal on all opened issues, again signifying that it maintained its position on wages as it existed on December 29, 1977. During the course of the session, the Company reminded the Union of its usual policy of granting a wage increase on May 1 of each year, stating that part of the 6 percent had been given in January at the other stores and the Company wished to give the remainder in May, and would in fact do so at Morgantown and its two stores in 27 William Petite, the dairy department head, and a member of the bar- gaining unit, received a 25-cent increase on January 16, 1978, in what ap- pears to have been a violation of the Company's representation that only wage mcreases required by the new minimum wage law would be grant- Martinsville. The Company then requested the Union's position on implementation of the increase in Mooresville as well. The Union opposed, and was informed that the Company intended to implement at all four stores. With respect to the proposal in question, of the 55 em- ployees in the unit as of April 28, 1978, 15 would not have received any wage increase as of January 1, 1978, and 13 would receive no increase as of May I, 1978.28 When confronted by union charges that two department heads since January I, 1978, at Mooresville had actually received increases exceeding what had been proposed to the Union, the Company revised its wage proposal, but only to increase the rates offered with respect to the de- partment beads. By letter dated May 2, 1978, Hahn, on behalf of the Company, informed the Union that the Company would be willing to delay implementation of the proposed May 1, 1978 wage increase for "a few days," signifying that it would delay until after the next negotiating session of May 8, 1978. During that session, after the Union had scaled down its wage demands considerably, the Compa- ny made a counterproposal. Under it, wage rates to be effective on May 1, 1978, were, with two minor excep- tions," identical to the December 29 wage package. The new offer did sanction additional increases effective Jan- uary 1, 1979, with 10-cent increases to stockers, depart- ment heads, and cashiers with 1 year or more of service. Raises to others were essentially equal to the 25-cent in- crease in the Federal minimum wage to be effective on that date. This phase of the new counterproposal was in all probability drafted with an eye to the impending revi- sion in the Federal wage law, and the need to avoid a compacting of wage levels on that eventuality." By letter dated May 13, 1978, over Donovan's signa- ture, the Union was informed that the Company would implement its offer at the Mooresville store retroactive to May 1, 1978. Excerpts from that letter, include the following: [A]s you know, since January 1, 1978, the employ- ees whom you represent in Mooresville have been paid less than the Company's other employees at your insistence. . . . [W]e feel there is unrest in the store because of the years delay in any wage increase and as I told you it just doesn't seem fair that the employees should be involved in the strategy of bargaining. [11n the interest of decent, honest personnel rela- tions with their employees, both union members and nonunion members, we cannot ask them to continue working for less money than we think their labor is worth. . . . [W]e have requested you to consent to the imple- mentation in the best interest of the people you rep- 28 See R. Exh. 2(c), App. a. 29 The exceptions involved an increase in the rates available to cash- iers with 1 and 2 years' service. 0 Compare G.C. Exti 95 with G.C. Exh. 67. MOORESVILLE IGA FOODLINER 1073 resent, but you have refused. As we said, this final offer has been on the table for some time. We will therefore implement immediately for the reasons stated above. The increase was implemented and, when negotiations broke off on June 5, 1978, the employees at Mooresville had been prejudiced in relation to their counterparts at Respondent's nonunion stores, in terms of their participa- tion in increases in wage levels. C. Conclusions Respondent's contention that it simply bargained hard when considered against positions taken at various stages of the bargaining table is viewed with suspicion. The fmal agreements reached showed that Respondent suc- cessfully maintained its position seeking a broad and comprehensive management-rights clause. Its insistence on a uniform lunch period, where in the past employees could elect the length thereof, also ultimately resulted in union assent. A similar departure from past practice was manifested by Respondent's insistence on contract lan- guage making polygraph tests mandatory. Although Respondent's position on wages shall be dis- cussed below, not unlike that issue, it manifested a grudging resistance to negotiation of economic benefits that would alter the status quo. Thus, no real flexibility was shown at any time in the negotiations with respect to vacation pay entitlement, paid holidays, health, wel- fare, and retirement. Respondent insisted that any con- tract reflect what had been its policy in the past in these areas. In the critical area of wages, Respondent's approach would predictably contribute either to frustration of agreement, or one, under which, the Union had little chance of survival. The excerpts set forth above from the Donovan letter of May 13, 1978, contained a number of truths pertaining to the adverse impact that wage ne- gotiations had on employees in the Mooresville store. It is difficult to imagine that Respondent was unaware of these dire implications while formulating its wage strate- gy.31 This strategy removed effectively the wage issue from give-and-take negotiations. Prior to the onset of formal negotiations, in May 1977 Respondent requested and obtained union assent to across-the-board increases. The Union, unaware that assent would diminish Re- spondent's flexibility at the bargaining table, approved implementations and employees in the appropriate unit shared in Respondent's grant of the increases. Respond- ent's first wage proposal was made on November 11, 1977. It reflected little change in the existing wage struc- ture. Thereafter, faced with Federal compulsion to in- crease wages effective January, Respondent made a The concern Manifested by the Respondent in this letter for the in- terest of employees at the Mooresville store is puzzling in at least one sense. Because the increase proposed on December 29, 1977, was imple- mented at the three nonunion locations, Mooresville employees earned prejudically lower rates between January 1 and May 1, 1978. Respondent could hardly deny an awareness that the inequity for those employees could only have been resolved through full retroactivity to January 1, 1978. Respondent's specious argumentation against retroactivity while taking the questionable implementation action of May 17, 1978, is not without significance, second wage offer on December 23, 1977, which was considered at the negotiating session on December 29, 1977, but only after the terms thereof were corrected and presented to the Union under a threat of implemen- tation. Though having received what might fairly be de- scribed as a last-minute offer, the Union was placed in a position of either acceding to Respondent's unilateral de- termination of increases, or take a position to the preju- dice of represented employees. The Union elected to resist, and the Company subsequently informed that the only wage increases to be placed in effect in Mooresville, were those required by the changes in Federal laws. Nonetheless, the increases proposed to the Union were granted in Respondent's nonunion stores effective Janu- ary 1, 1979. Respondent repeated this approach on April 28, 1978, threatening the Union with implementation unless it agreed to a contract, which according to my perception of the posture of negotiations, would have re- quired union capitulation on essentially all open points. When this did not occur, the Union was notified that the Company would implement. Before doing so, a third offer was made by Respondent on May 5, and then im- plemented on May 17. At the June 5 session, prior to ne- gotiations breaking off, the wage offer included in the Company's final proposal was identical to that placed in effect on May 17, 1978, and varied therefrom only to the extent apparently dictated by revision in the Federal minimum wage law to be effective on January 1, 1979. Respondent's negotiating stance with respect to wage rates was hardly in consonance with a receptive attitude good-faith bargaining. Though not pleading inability to pay, it made three wage offers, each of which, I am con- vinced, was drafted within limits that employees would readily perceive, as affording precisely what they would have enjoyed had there been no Union in the picture. Thus, in each instance, the offers, while rejecting the notion that all unit employees should receive some im- mediate increase, were born of no more than the Em- ployer's interest in both accommodating its annual review policy and in assuring an equitable wage distribu- tion in the face of revisions in the federally guaranteed wage.32 The message that collective bargaining was a prejudicial exercise that would result in no gains for em- ployees was evident in each. Aside from the terms of the offers, Respondent's tactic of confronting the Union with them on an 11th-hour basis, with the characterization of "last offer," under self-serving declarations of impasse, and threats of implementation, was calculated to remove effectively from bargaining the wage issue. The Union was forced to either accept implementation, and thereby to acknowledge Respondent's right to unilaterally deter- mine wage rates on a take-it-or-leave-it basis, or to accept the consequences of full or partial implementa- tion. Indeed, Respondent's action, in having implemented its last-minute December offer at the nonunion stores, and thereafter steadfastly opposing full retroactivity at Mooresville with respect to the very benefits granted 32 The accuracy of this assessment is underscored by the fact that the December offer was implemented at the nonunion stores. Thus, Respond- ent is in no position to argue that it gave more at these locations than would have been the case had there been no bargaining at Mooresville. 1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD elsewhere, strongly suggested an intent to subvert bar- gaining to ends inimical to statutory obligations. The foregoing was consistent with Respondent's decla- ration that its objective in negotiations was not to obtain a contract that it could live with, but one which con- tained provisions it wantec1. 33 Indeed, at no time during the negotiations did the Company indicate to the Union that the reason it was not able to meet wage demands or to improve benefits was due to the financial condition of the Company. Respondent did agree to certain provi- sions pertaining to union activity, including limited access by union representatives, authorization of employ- ee leave for attending union-sanctioned conventions, and the posting of union decals. However, its unwaivering resistance to union security and dues checkoff and its in- sistence on restrictive provisions foreclosing its own em- ployees from publicizing grievances would contribute foreseeebly to an environment hardly conducive to agreement. Also arousing curiosity was a particular argument made by Respondent against union security and checkoff and, during the early stages'; its objection to supplying addresses of new hires to the Union. In resisting these union proposals, Respondent repeatedly adverted to a concern held for the interests of employees. This stood in stark contrast with Respondent's regard for such inter- ests, when in the past its employees sought to avail them- selves of what Congress said was rightfully their prerog- ative. Thus on June 28, 1972, well before the inception of the instant Union's effort to organize employees at the Mooresville store, the National Labor Relations Board issued a decision involving one of the Martinsville stores, finding that Respondent engaged in violations of Section 8(a)(1) and (3) of the Act through a pattern of conduct whereby a different union's majority was reversed by discriminatory transfers, promotions, and discharges.34 These unfair labor practices were viewed as sufficiently egregious to warrant a bargaining order under authority of NLRB v. Gissel Packing Co., 395 U.S. 575, 615 (1969). These flagrant violations invited still others that became evident during subsequent organization at Mooresville, the campaign that lies at the threshold of this proceed- ing. Thus, in connection therewith, the Board in Scotts IGA Foodliner, 223 NLRB 394 (1976), again found perva- sive violations of Section 8(a)(1) as well as further Acts of discrimination in violation of Section 8(a)(3), once more issuing a bargaining order to redress Respondent's continuing disregard of statutorily guaranteed employee rights. Indeed, among the independent violations of Sec- tion 8(a)(1) attributed to Respondent by the Board's find- ings in that case was a statement by David Schwab, the son of Respondent's president and sole owner, that, "no matter what, his dad wouldn't let the Union in, he would 33 See R. Exh. 2(b), minutes of negotiations of March 30, 1978, P. 3. 34 During the course of that effort to organize meat department em- ployees at one of the Martnisville stores, according to findings made by the administrative law judge, "Respondent transferred, terminated or oth- erwise sought to effect the employment status of four of the six employ- ees in the meat department, suspended a fifth employee m that depart- ment, and discharged Henry Nocas, the meat department manager." See 197 NLRB at 1073. In that case only one employee in the unit that was subject to organization was not reached directly by Respondent's unlaw- ful discrimination. take it to court as he did in Martinsville . . . he had a lawyer from Chicago. . . and no matter what he would keep his Union from coming in." 35 As should be obvious from the foregoing Respondent's declared concern for employee interests did not always run constant. But more significant is the fact that the instant record contains clear evidence that Respondent has adhered to and, at least in one respect, embellished its reputation as an offender of this Act. First etched by the almost com- plete annihilation of a unit subject to organization at one of the Martinsville stores, Respondent, having again demonstrated during the Mooresville campaign that its own interest in maintaining a union-free operation took precedence over statutory compliance, subsequently ex- tended its record of unfair labor practices at the Moores- ville location. Thus, the order of the National Labor Re- lations Board on March 29, 1976, directed Respondent to bargain with the Union on behalf of employees. None- theless, Respondent thereafter conceived "Crax and Fax," a publication drafted by Leisen and distributed to employees at all four stores, through which it propagan- dized against union support through the reprint of arti- cles charging that store closings were attributable to union demands, reporting threatened increases in union dues, and citing specific instances of union decertification as well as a high frequency of decertification evidenced by statistics released by the National Labor Relations Board. Indeed, Respondent's answer to the Circuit Court of Appeals for the Seventh Circuit, when the latter en- forced the bargaining order in this unit, appeared in the July 1977 issues of "Crax and Fax," and is set forth below: UNION ACTIVITY Most of you are probably already aware that the Mooresville store has been ordered to begin "Bar- gaining in good faith" with Retail Clerks Union, Local 725 which wants to represent the employees of that store only. I have been asked many questions by employees concerning this situation. Should any others have questions, I will be glad to answer them honestly on an individual basis. I feel qualified to do this, since I have been a member of that union. I do not wish to come out with detailed state- ments which might be labeled "Unfair labor prac- tice." But I'm available to any of you. My only comment to those in doubt about what they think best for them is to remember that politi- cal or union "promises" are never put in writing and are very seldom ever kept. In some cases unions are good, some cases bad. It depends on employee's needs and how the union delivers to those needs. Sometimes unions are not as beneficial as they seemed, as indicated by the fol- lowing news article: "Employees of Mace supermarket in Conners- ville, Indiana in a federally supervised secret elec- 35 223 NLRB at 403. MOORESVILLE IGA FOODLINER 1075 tion have voted against continued representation by the Retail Clerks Union." This is the second store that has decided against Retail Clerk's representation in this company. The Mace Supermarket in Kokomo, Indiana voted out the Retail Clerks on October 20, 1976." There have been many articles of this type re- cently. So I think a person should make their own decision very carefully. Once a union is in . . you're stuck with it for at least three years regard- less of what you think later. I might add, that these comments are my person- al feelings and in no way are intended to be a com- pany viewpoint. Thus, the bargaining that commenced on August 4, 1977, began and continued against a background where- by the Employer was wedded to propaganda, albeit le- gitimate on its face, calculated to dissuade employees from continuing their support of the Union. At the same time, Respondent maintained its relationship with the Conference Committee, which it held out to employees as a viable alternative to union representation. Such con- duct, in derogation of the Union's status as exclusive stat- utory representative, constituted an indefensible and bla- tant violation of the earlier Board Order and the court decree thereon." The animus reflected by the above was not lacking in consistency with that which radiated from the bargaining table. Thus, although Respondent's communications with employees included sometimes subtle, sometimes direct appeals that they reject union representation, the caution with which Respondent proceeded in negotiations to avoid any notion that collective bargaining could be the source of enhanced benefits obviously lent credibility to its antiunion posture. Throughout, and in the end, Re- spondent dominated negotiations, expressing a will to accept a contract only if it contained a broad and com- prehensive management-rights clause, prohibitive no- strike clause, no union security, no checkoff, and an eco- nomic package that in net value actually penalized Mooresville employees for their adventure with collec- tive bargaining. 36 Respondent points out in its brief that the Union was aware of the Conference Committee, and voiced no objection thereto. It does appear that this subject came up at the negotiating session of November 1, 1977. See R. Exh. 1(j). At that time the parties were discussing a union propos- al as the statute of itself demands, simply required the Company to treat with the Union as the exclusive representative and no one else. Of interest is the fact that Hahn, on behalf of Respondent, commented on that occasion that "as a legal matter, he could not think of a safe way to retain a separate employee representative while in a collective bargaining relationship with the Union." This was a plain reference to the Confer- ence Committee, and it is curious that Respondent itself would question the legality of its relationship with the Committee in the context of nego- tiating a union proposal that simply embodied the Employer's statutory obligation. Despite this observation by Respondent's counsel, the Compa- ny continued to meet with the Conference Committee and the employee representative from the Mooresville store. Respondent's contention that the Union waived any objection to Re- spondent's continuing dealings throughout the negotiations with the Con- ference Committee is lacking in merit. It is true that at least as of Novem- ber 1, 1977, the Union was aware of the existence of that arrangement, but its indication at that time on execution of a new contract, the employee representative could be the Union's steward, was not tantamount to ap- proval of the illegal relationship. In sum, it is one thing for an employer to take eco- nomically sound positions in negotiations to which it is deeply, honestly, and fairly committed and to maintain them forever even though destined to produce a stale- ment.37 Yet it is quite another to condone a conclusion effort to manipulate the bargaining process in service of a predetermination to frustrate the choice of employees to designate a collective-bargaining representative and to enjoy the fruits of that designation. I am convinced that Respondent's stance in the course of these negotiations was contrived as an integral of a three-pronged offensive whereby antiunion propaganda and dealings with and support of the Conference Committee could be evaluated by employees and considered by them against the dra- matically impaired economic plight of those who sought advantage through union representation. In sum, I fmd that Respondent acted with an intent and state of mind throughout to utilize bargaining, and the apparent discre- tion available to it within that process, to chill unioniza- tion once and for all at each of its several locations. It thereby violated Section 8(a)(5) and (1) of the Act. 3. The alleged interference with picketing The complaint alleges that Respondent in the course of the strike, on various dates, independently violated Section 8(a)(1) by prohibiting employees from picketing its Mooresville and Martinsville South facilities. (a) With respect to Mooresville, it appears that on De- cember 1, 1977, picketing occurred in the immediate vi- cinity of the store entrance. On that date nonemployee union agents Al Sanford, Dan Reasons, Jim Preddy, and Ed Stahl joined employees Sandy Kingham, Noble Cal- vert, and others who were unidentified for the purpose of picketing that location. Subsequently, Stahl and nonemployee Clara Rogers,38 together with employee Sandy Kingham, proceeded to picket and handbill in and near a common vestibule adja- cent to the separate entrances utilized for ingress and egress to Respondent's facility and an adjacent drugstore. It does not appear that this conduct on the part of the pickets posed a significant impediment to those seeking to enter and leave the stores. After about 10 minutes, Re- spondent's vice president, Leisen, emerged from the store, informing Stahl personally, "you are not supposed to be picketing in front of this IGA store." Stahl replied that the striking employees had the right to do so and would continue unless ordered away by the police or given "something in writing." Following employee Kingham's disappearance from the group, a police offi- cer arrived at the scene, stating that a complaint had been received from the drugstore and asking Stahl to move in front of Respondent's store. The nonemployee pickets did so. Leisen then reappeared, stating, insofar as relevant, to Stahl, you have no right, as a union repre- sentative, or a picketer, to picket in front of the store." Stahl answered, "I have just as much right as anyone else coming into the store." 37 See Gehnrich & Gehnrich, Inc., 232 NLRB 1122 (1977). 38 Rogers was an employee of Krogers and a member of the Charging Union. 1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD After this, Clara Rogers left and Al Sanford joined Stahl in front of the store. Leisen, still with no employ- ees present, approached the union agents again, this time threatening to call the police if they did not leave. Stahl and Sanford remained at the disputed location until a police cruiser arrived, whereupon the two union agents repaired to the parking lot entrance. A second confrontation took place at Mooresville on February 15, 1978. That morning, Union Representative Stahl and employees Lloyd Bales and Jeff Smith re- turned to the vestibule to picket and handbill. An indi- vidual named David Pryor emerged from the store, stat- ing that the police were on the way and the pickets would have to leave.39 They refused, whereupon Leisen arrived, asking, "Have they passed a new city ordinance to where you people can picket up here?" Stahl replied, "No, we just got tired of walking out in the street." Leisen told the group to leave or he would have them arrested. The picketing employees and Stahl again de- clined to leave. Shortly thereafter, a police officer ar- rived and under threat of arrest told the group to remove themselves to the parking lot entrances. (b) As for the Martinsville South store, Union Repre- sentatives Stahl, Mayhew, and Preddy arrived at that lo- cation with Respondent's employees Pat Boler, Lloyd Bales, and Mark Austin at 4 p.m. on December 15, 1974. Unlike the Mooresville store and adjacent parking lot, which is accessible through two entrances. At approxi- mately 5:15 p.m., a policeman cautioned the pickets not to obstruct traffic. About 10 minutes later, the pickets were approached by an individual who identified himself as the chief of police, Jack Stanley, who informed the pickets that they had been expected and "there had been a Town Council Meeting and that they didn't care for us being there, as long as we were peaceful and that we could walk on the sidewalks, but that we could not walk on the street surrounding the IGA parking lot." In the course of this conversation, Bill Schwab, Re- spondent's president appeared and was asked by "Stan- ley" if he wanted the pickets on his property. Schwab said, "No." At this point, "Stanley" told the pickets that the only location at which the pickets could "walk" was on a sidewalk across the street from the Martinsville store. Stahl, on behalf of the pickets, asked what would result if the latter stayed where they were Stanley said he would have to arrest them. The pickets then left the site.4 o Conclusions On the above findings of fact, it is clear that Respond- ent perpetrated or condoned a coercive restriction on employee picketing and handbilling in the vestibule of the Mooresville store on February 15, 1978, and on its property at the Martinsville South facility on December 39 Stahl testified as to his "belief" that Pryor was the "Assistant Store Manager" The complaint does not allege that Pryor was an agent or su- pervisor of Respondent. 40 At the hearing, the parties stipulated that on December 15, 1977, an agreement was entered between the Union and the city attorney of Mar- tinsville, allowing picketmg on an easement consisting of an area on one of the streets bordering the Martinsville South store 15, 1977.41 Whether such restraint violated Section 8(a)(1) of the Act presents a more difficult question. At both locations the threats of arrest curtailed peace- ful picketing and handbilling by employees in furtherance of an economic strike against their employer. In both in- stances the employee conduct occurred at locations oc- cupied by, and was directed exclusively toward, their employer. While this form of economic pressure at those locations was clearly protected by Section 7 of the Act, the inquiry goes further, for the precedent has under cer- tain conditions afforded primacy to property rights or the employer's right to maintain operations and discipline in condoning intrusions on the exercise of otherwise pro- tected employee rights. Over the years, the Supreme Court has recognized that it is the duty of the Board to accommodate the ten- sion that exists between inherent employer interests and employee rights where unfair labor practice charges em- anate from conduct occurring on the employer's proper- ty. In earlier cases, involving organizational, as distin- guished from strike, activity, latitude had been afforded to employers as against outside nonemployee organizers engaged in the distribution of literature on property of the former. Thus in NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), and Central Hardware Co v. NLRB, 407 U.S. 539 (1972), the Supreme Court held that an employ- er's property rights control and that it may lawfully impede nonemployee organizers from intruding on its property to engage in organizational distribution unless the General Counsel proves that no alternative means exist for communicating with the employees. With re- spect to employees, however, these cases were preceded by Republic Aviation Corp v. NLRB, 324 U.S. 793 (1945), in which it was held that an employer could not restrict its own employees from distributing literature on its property on their own time in nonworking areas, unless the employer demonstrates that such a ban was necessary to maintain plant discipline or production. This diminution of property rights in the interest of primacy to Section 7 rights by divergent standards and proof responsibility in the case of employees, as distin- guished from outside organizers, was preserved in Bab- cock & Wilcox and Central Hardware. This was reiterated recently in Eastex, Inc. v. NLRB, 437 U.S. 556, 557 (1978), in which the Court stated: In Babcock & Wilcox, on the other hand, nonem- ployees sought to enter an employer's property to distribute union organizational literature. The Board applied the rule of Republic Aviation in this situa- tion, but the Court held that there is a distinction "of substance" between "rules of law applicable to employees and those applicable to nonemployees." The difference was that the nonemployees in Bab- cock & Wilcox sought to trespass on the employer's property, whereas the employees in Republic Avia- tion did not. Striking a balance between § 7 organi- 41 No violation inured from the December 1 confrontation at Moores- ville. The complaint alleges an interference with employee pickets on that occasion, and the evidence does not substantiate that this occurred, as employee Kingham had left before Lessen had manifested any threats. MOORESVILLE IGA FOODLINER 1077 zational rights and an employer's right to keep strangers from entering on its property, the Court held that the employer in Babcock & Wilcox was en- titled to prevent "nonemployee distribution of union literature [on its property] if reasonable efforts by the union through other available channels of com- munication will enable it to reach the employees with its message. . . ." The Court recently has em- phasized the distinction between the two cases: "A wholly different balance was struck when the orga- nizational activity was carried on by employees al- ready rightfully on the employer's property, since the employer's management interests rather than his property interests were there involved." In Eastex, Inc., the Supreme Court held that an employer violated Section 8(a)(1) by interfering with employees engaged in distribution of literature on the employer's property, noting that "[the] employees are 'already right- fully on the employer's property.,' so that in this case it is the employer's management interests rather than its property interests that primarily are implicated." In the interim, however, the Supreme Court decided Hudgens v. NLRB, 424 U.S. 507 (1976), in which the property right concept was deemed a reliable criteria in reconciling Section 7 activity with the right of a neutral owner to curtail legitimate strike action waged on its pri- vate property. That case grew out of a labor dispute in which warehouse employees were striking their employ- er in support of economic contract demands. The strik- ing warehouse employees elected to extend their dispute beyond their immediate place of employment and to their employer's retail outlet located in a large enclosed shop- ping mall. The general manager of the mall prevented the employees from picketing in the mall at entrances ad- jacent to their employer's retail store. The Board in find- ing that the owner of the mall violated Section 8(a)(1) deemed the existence or nonexistence of alternative means of communication to by immaterial. In remanding to the Board, the Supreme Court stated at 521-522: In the Central Hardware case, and earlier in the case of NLRB v. Babcock & Wilcox Co., 351 U.S. 105, the Court considered the nature of the Board's task in this area under the Act. Accommodation be- tween employees' rights and employer's property rights, the Court said in Babcock & Wilcox, "must be obtained with as little destruction of one as is consistent with the maintenance of the other." 351 U.S., at 112. Both Central Hardware and Babcock & Wilcox in- volved organizational activity carried on by nonem- ployees on the employers' property./10/ The con- text of the § 7 activity in the present case was dif- ferent in several respects which may or may not be relevant in striking the proper balance. First, it in- volved lawful economic strike activity rather than organizational activity. See Steelworkers v. IV.L.R.B. [Carrier Corp.], 376 U.S. 492, 499; Bus Employees V. Missouri, 374 U.S. 74, 82; 1V.L.R.B. v. Erie Resistor Corp., 373 U.S. 221, 234. Cf. Houston Insulation Contractors Ass'n. v. 1V.L.R.B„ 386 U.S. 664, 668- 669. Second, the § 7 activity here was carried on by Butler's employees (albeit not employees of its shopping center store), not by outsiders. See NL.R.B. v. Babcock & Wilcox Co., [351 U.S.] at 111-113. Third, the property interests impinged upon this case were not those of the employer against whom the § 7 was directed, but of another. The Babcock & Wilcox opinion established the basic objective under the Act: accommodation of § 7 rights and private property rights "with as little destruction of one as is consistent with the mainte- nance of the other." The locus of that accommoda- tion, however, may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context. In each generic situa- tion, the primary responsibility for making this ac- commodation must rest with the Board in the first instance. i ° A wholly different balance was struck when the organiza- tional activity was carried on by employees already rightfully on the employer's property, since the employer's management inter- ests rather than his property interests were there involved. Repub- lic Aviation Corp. v. N.L.R.B., 324 U.S. 793. This difference is "one of substance." 1V.L.R.B. v Babcock & Wilcox Co., 352 U.S., at 113. On remand the Board reaffirmed its 8(a)(1) finding against the owner of the mall. See Scott Hudgens, 230 NLRB 414 (1977). The Board concluded that neither the nature of the protected activity, the persons engaged therein, nor the identity of the person holding title to the property precluded a violation on the facts presented. As I interpret that decision, it does not stand for the propo- sition that striking employees who confront their own employer on private property may only avail themselves of a statutory remedy where the Babcock & Wilcox test of no alternative means of access is substantiated. On this narrow question the Board stated "the employee status of the pickets have entitled them to at least as much pro- tection as would be afforded to nonemployee organizers such as those in Babcock & Wilcox," 230 NLRB at 416. (Emphasis added.) Turning to the instant facts, the question whether the Babcock & Wilcox or Republic Aviation standard applies is critical to the handbilling and picketing on December 15 at the Mooresville store. There is no evidence that Re- spondent in any sense interfered with picketing at the en- trances to its parking lot, nor am I convinced that picket- ing at those locations either presented a safety hazard to the picketing employees or was materially less opportune in terms of access to entering customers, employees, and other members of the general public than the vestibule. On the other hand, the picketing and handbiffing that oc- curred in and near the vestibule entrance to the store was not shown by credible evidence to obstruct or inter- fere with discipline or the maintenance of Respondent's operations.42 Thus, the question turns on whether prop- 42 The vestibule is an area about 20 feet wide and 20 feet deep. It is common to and incorporates the entrances to both the drugstore and Re- spondent's facility, with one on the left, the other on the right. There was Continued 1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD erty interests afforded a cogent justification for Respond- ent's intervention in this regard. The question turns on whether the striking employees, through protestation in the form of picketing and hand- billing, had a legal right to be present and engage in such activity in a nonworking area at their employment situs." As the Board recently stated in Firestone Tire & Rubber Co., 238 NLRB 1323 (1978): In an unbroken line of decisions, this Board and the Supreme Court have stated that, where an employ- ee exercises his Section 7 rights while legally on an employer's property pursuant to the employment relations, the balance to be struck is not vis-a-vis the employer's property rights, but only vis-a-vis the employer's managerial rights. With respect to the facts under consideration here, property rights are asserted by way of a defense to charges against an employer whose alleged incursion of employee rights occurred in the context of its own dis- pute with its own employees emerging from the internal employment relationship. Respondent did not profess to act in that regard out of the interests of the owner of its leased facility or on behalf of the neighboring drug- store.4 In these circumstances, the interests of Respondent do not take on heightened significance because its coercion was addressed to strikers, as distinguished from employee organizers. At common law, the employee who, without his employer's permission, returns to the situs of his work to distribute union literature to unorganized co- workers is no less a trespasser45 than the striker who seeks to appeal to coworkers at his place of work. The striker is an employee too," and his appeals on the very premises from which the employment relationship and the labor dispute emerge involve no greater incursion on private property than effected by the employee organiz- er. A logical and consistent interpretation of precedent under this Act requires that both be deemed as within no evidence that any of those Involved in the picketing physically ob- structed access to Respondent's store or impeded employee or customer access to merchandise displayed outside the store. Although Leisen af- forded testimony as to the desirability of maintaining the vestibule as an open area it was not an area where merchandising took place or to which sales personnel were assigned. Further, in addition to my mistrust of Leisen, and his lack of credibility, I agree with the General Counsel that his reference to customer complaints were lacking in adequate foundation and too vague to show an intrusion on the managerial interests involved here. 46 Although the strikers were unfair labor practice strikers at all times material, their status as such is not considered material to the analysis. 44 It is true that the drugstore also inveighed against the employee ac- tivity in the vestibule, but that fact is of no solace to Respondent. For it is the latter's conduct that is in issue. Because Respondent's intervention was not expressly on behalf of the drugstore, the allegations of unlawful interference stand on no lesser footing simply because the picketing at that locale could have been effectively curtailed by the separately owned and operated drugstore. See, e.g., Holland Rantos Co., 234 NLRB 726 (1978). 46 Cf. GTE Lenkurt, Inc., 204 NLRB 921, (1973), in which the em- ployer published a specific rule precluding employees from entering the premises unless workmg or scheduled for work. 46 Sec. 2(3) of the Act provides in material part: The term "employee" . . . shall include any individual whose work has ceased as a consequence of, or in connection with any current labor dispute. . . . the class "legally on an employer's property pursuant to the employment relations."47 Accordingly, Republic Aviation is controlling and, as Respondent threatened to have employees arrested if they did not remove themselves from a nonworking area, without demonstrating that such action was necessary to maintain production or discipline, I find that its conduct at the Mooresville store on February 15, 1978, violated Section 8(a)(1) of the Act. Respondent's interference with the picketing at the Martinsville South store was unlawful, even if view from the more rigid standard applied in Babcock & Wilcox, supra. That store was not the immediate location of the employment relationship, and unlike Mooresville, was lo- cated in the only facility occupying a tract of land all of which was owned by Respondent. On December 15, 1977, a threat of arrest that evolved from an exchange between Respondent's president and an individual identi- fying himself as the chief of police resulted in the em- ployee pickets removal to a sidewalk across the street. Under Babcock & Wilcox, the available alternative means of communication must be "reasonable" if the balance is to be struck in favor of preserving an employer dispu- tant's property rights. 4 8 Access by a labor organization to mailing lists of area residents, to direct mail services, and other media, including television, radio, and newspa- pers, is not the equivalent of direct, personal confronta- tion with those seeking ingress and egress at the situs of a lawful, peaceable strike. It is clear that the pickets, from their location across the street would be removed from the traffic pattern so necessary both to effective handbilling and to the opportunity for personal identifi- cation by nonstriking employees from whom they seek common cause and by customers from whom they seek economic support. Babcock & Wilcox does not privilege an employer, who is under interdict of its employees in a traditional economic labor dispute, to insulate itself from legitimate economic pressures by asserting ownership in- terests ha the justification for relegating its grieving em- ployees to substantially less effective alternatives." I find that Respondent violated Section 8(a)(1) by its coer- cive interference with employee picketing and handbill- ing at the Martinsville South store on December 15, 1977.5° 47 As stated by the Board, on remand from the Supreme Court in Scott Hudgens, supra at 416: [T]he instant case involves economic strike activity rather than orga- nizational activity, it is fully recognized by Board and court prece- dent, as well as by the parties to this proceeding, that both types of activity are protected by Section 7. Accordingly, economic activity deserves at least equal deference, and the fact that the picketing here was in support of an economic strike does not warrant denying it the same measure of protection afforded to organizational picketing. 48 See Scott Hudgens, 230 NLRB at 416 46 See Scott Hudgens, 230 NLRB at 416-417. 5° It is noted that although at both Martinsville South and Mooresville the coercion was addressed to nonemployees as well as employees gener- ally, the presence of the nonemployees is deemed of no bearing on the legitimacy of Respondent's action at either location. MOORESVILLE IGA FOODLINER 1079 CONCLUSIONS OF LAW 1. Respondent Schwab Foods, Inc., d/b/a Mooresville IGA Foodliner is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 725, Retail Clerks International Association, AFL-CIO and the Store Representative-Management Conference Committee are labor organizations within the meaning of Section 8(a)(1) of the Act. 3. Respondent violated Section 8(a)(1) of the Act by threatening employees with arrest because of their pick- eting and handbilling though conducted under conditions protected by Section 7 of the Act. 4. Respondent violated Section 8(a)(2) and (1) of the Act by rendering unlawful assistance to the Store Res- presentative-Management Conference Committee. 5. Respondent violated Section 8(a)(5) and (1) of the Act by an overall pattern of bad-faith bargaining during initial contract negotiations, in the appropriate unit set forth below: All full-time and regular part-time employees of the Respondent employed at its Mooresville facility ex- clusive of all meat department employees, profes- sional employees, guards, the store manager, the as- sistant store manager, the night manager, the delica- tessen-bakery manager and all other supervisors as defined in the Act. 6. The above unfair labor practices are unfair labor practices having an effect on commerce within the mean- ing of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it shall be recommended that Re- spondent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. I have found that Respondent unlawfully failed and re- fused to engage in good-faith collective bargaining with the Union, as exclusive representative of employees in the above-defined appropriate unit. I shall therefore rec- ommend that it be ordered to bargain collectively with the Union, on request, and to embody any understanding reached in a signed contract. Finally, having found that Respondent granted unlaw- ful assistance and support to the Store Representative- Management Conference Committee, it shall be recom- mended that Respondent withhold and withdraw recog- nition therefrom until certified in a Board-conducted election. On these findings of fact and conclusions of law and on the entire record, 1 issue the following recommend- ed' 51 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order herem shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- ORDER The Respondent, Schwab Foods, Inc., d/b/a Moores- ville IGA Foodliner, Mooresville, Indiana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercing or restraining its employees from engag- ing in picketing or handbilling where conducted on its premises under conditions protected by the Act. (b) Assisting or granting support to the Employee Representative-Management Conference Committee, any successors thereto, or any other labor organization. (c) Refusing to bargain collectively and in good faith concerning rates of pay, wages, hours, and other terms and conditions of employment with Local 725, Retail Clerks International Association, AFL-CIO, as the ex- clusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time employees of the Respondent employed at its Mooresville facility ex- clusive of all meat department employees, profes- sional employees, guards, the store manager, the as- sistant store manager, the delicatessen-bakery man- ager and all other supervisors as defined in the Act. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain in good faith with Local 725, Retail Clerks International Association, AFL-CIO, as the exclusive representative of all employees in the afore- said appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such under- standing in a signed agreement. (b) Withdraw recognition from the Employee Repre- sentative-Management Conference Committee unless and until certified as exclusive representative in an election conducted by the National Labor Relations Board. (c) Post at its facility in Mooresville, Indiana, copies of the attached notice marked "Appendix."52 Copies of the notice, on forms provided by the Regional Director for Region 25, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 52 If this Order is enforced by a judgment of a United States court of appeals, the words m the notice reading "Posted by Order of the Nation- al 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."