L & L Shop Rite, Inc.

1036 DECISIONS OF THE NATIONAL LABOR. RELATIONS BOARD L & L Shop Rite, Inc. and Retail Store Employees Union, Local 36, 'United Food and Commercial Workers International Union, AFL-CIO. Case 7-CA-17096 24 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 28 July 1981 Administrative Law Judge Wil- liam F. Jacobs issued the attached decision. The General Counsel and the Union filed exceptions and supporting briefs and the Respondent filed cross-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, findings,1 and conclusions only, for the reasons set forth below and to adopt the recommended Order. In September 19792 Retail Store Employees Union, Local 36, United Food and Commercial Workers International Union, AFL-CIO (the Union) decided to institute a boycott of the ap- proximately 13 `Shop Rite supermarkets in the Lan- sing, Michigan area. To this end, on 5 September the Union sent a letter to the, president of L & L Shop 'Rite, Inc. (the' Respondent) disclaiming inter- est in representing the Respondent's employees and stating that activities in which the Union thereafter would engage, including informational picketing, distribution of printed materials, or the boycotting of the Respondent, were "solely intended merely to notify the public of the store's non-union status." On 6 September an identical letter was sent to the Respondent from "United Food and Commercial Workers Local 951: On 13 November the Michigan State AFL-CIO sent letters addressed to all union members in the greater Lansing 'area, informing them that the Union and Local 951 intended to conduct informa- tional picketing at the 13 Lansing area Shop Rite stores beginning on 19 November. The letter fur- ther stated that its purpose was "to advise you, your fellow union members and the consumer, of the blatant anti-union attitude of the owners of the I The Respondent has excepted to some of the judge's credibility reso- lutions The Board's established policy is not to overrule an administra- tive 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 Cir 1951) We have carefully examined the record and find no basis for re- versing the findings 2 All subsequent dates are in 1979 Shop Rite Markets." The letter went on to quote language that it characterized as "antiunion" con- tained in the Shop Rite employee handbook, in- cluding statements that Shop Rite "is a non-union Company" and "oppose[s] unionism," that "experi- ence shows that where there are unions, there is often trouble, strife and discord," and that "[n]o person will be allowed to carry on union organiz- ing activities on the job . . . ." On 19 November the Union issued a press release announcing that many Lansing area union members and the Union were picketing Shop Rite stores "in order to fur- ther emphasize our concern over the anti-Union at- titude of Shop Rite management." The press re- lease quoted some of the same passages from the Shop Rite employee handbook that had been quoted in the 13 November letter. The press re- lease also stated that the Union had "no interest in organizing Shop Rite employees through this action . . . ." As part of its boycott effort, the Union began picketing and handbilling at the Respondent's su- permarket on 19 November. The supermarket is one of four stores located in a small shopping center at the intersection of ,Logan and Jolly Streets, heavily traveled streets that have speed limits of 35 miles per hour. The supermarket and an adjacent hardware store share the same build- ing, which is set back about 130 feet from Logan Street. A drugstore and a beauty salon occupy a, building separate from, and at a right angle to, the hardware store and supermarket. A parking lot that extends from the front of the supermarket and hardware store to the public sidewalk next to Logan Street is used by customers of all four stores. The parking lot has two entrances from Logan Street and one from Jolly Street. The park- ing lot and the land on which the four stores are situated are owned by the Respondent. The picketing and handbilling activity that took place at the Respondent's ,supermarket was done by union staff,people who were not employees of the Respondent. Eight to fifteen pickets arrived in late morning on 19 November and began walking with picket signs on the public sidewalks that parallel Logan and Jolly Streets. The public sidewalk adja- cent to Logan Street is 5 feet wide, and there is a 9-foot-wide grassy area between the sidewalk and the street which is not owned by the Respondent. Signs bearing three slightly different slogans were used throughout the picketing. One variation stated: "L & L Shop Rite Market Anti-Union. Please Do Not Patronize. United Food and Com- mercial Workers Locals 36 and 951, AFL-CIO." The second stated: "Boycott Anti-Union L&L Shop Rite. Please Do Not Patronize. UFCWU, 36 285 NLRB No. 122 L & L SHOP RITE and 951, AFL-CIO." The third variation began with a space for insertion of another union's name and ' then stated: "Supports The Boycott of Anti- Union L & L Shop Rite Market. Please Do Not Patronize." Each sign also contained the following additional language: "This sign is not directed to the employees of the above-named store or to em- ployees of any other employer doing business with this store, and is directed solely to the consumer public." The pickets also distributed handbills to motor- ists entering the parking lot. At the top, each hand- bill stated : "Boycott Anti-Union Shop Rites. Please Do Not Patronize." This was followed by a list of the names and addresses of 13 Shop Rite supermar- kets, including the Respondent. Below this list was stated: "Shop At Union Stores," following which there was a list of the names and addresses of a number of other supermarkets. "United Food and Commercial Workers Union, Locals 36 and 951" appeared at the bottom of the handbill. Also, the following statement was printed down the side of the handbill: "This leaflet is not directed to the em- ployees of the named stores or to the employees of any other employer doing business with these stores, and is directed solely to the consumer public."3 One picket testified that during the picketing on 19 and 20 November 5 to 10 percent of. the motor- ists entering the parking lot stopped to receive handbills, while another picket testified that 25 per- cent of the motorists accepted, handbills. There also was testimony that motorists stopping to accept handbills caused traffic to back up onto Logan and Jolly Streets, There additionally was testimony that some of the traffic backup was caused by the rather leisurely pace at which pickets at the park- ing lot entrances moved out of the way when mo- torists started to enter. As the judge recounts, shortly after the picketing began the Respondent's official warned the pickets to stay on the public sidewalk and not to enter the parking lot. Two pickets then began picketing and distributing handbills in the parking lot directly in front of the Respondent's supermarket. When they ignored the instruction of the Respondent's owner to get off his property, he summoned the police. The police arrived and told the pickets in front of s The pickets also had a leaflet prepared for distribution to truckdriv- ers, vendors, and salesmen advising them of the reason for the picketing; stating that it was not a strike, and asking them to proceed with their business as though no picket line existed. Additionally, the pickets had a leaflet prepared for distribution to Shop Rite employees in case any ap- proached them, stating that the picket line was not instituted to promote organization of their store but rather to publicize the antlumon attitude of Shop Rite management and therefore the pickets could not provide union authorization cards or even discuss the benefits of union membership for fear that the intent of their picketing might be misconstrued 1037 the supermarket, now numbering four, that they would be arrested unless they left the parking lot. The four pickets then retreated to the public side- walk, joining the others who had remained there, where they continued their activities. Many of the pickets left by early afternoon, but about 4 p.m. 25 to 30 pickets appeared and resumed picketing and handbilling on the public sidewalk. They continued this activity until about 6' p.m. The following day around noon about 40 pickets again took up picketing and handbilling on the public sidewalk. Two pickets began picketing and handbilling in the parking lot. Once again, they dis- regarded the Respondent's, order to leave the prop- erty. This time, however, when the police were summoned, they declined to order the pickets to leave the private property because the Union, in the meantime, had obtained the agreement of the county prosecutor's office that the pickets had a right to carry on their activities in the Respond- ent's parking lot unless they caused a fracas or other problems. After the- police .left, additional pickets moved their activities from the public side- walk to the parking lot, including the area in front of the Respondent's supermarket. The complaint alleges that the Respondent vio- lated Section 8(a)(1) of the Act by demanding that the pickets cease distributing handbills to the public entering the parking lot, demanding that the pick- ets leave the parking lot, threatening them with arrest if they did not do, so,, and causing their re- moval from the parking lot. The judge recom- mended that the complaint be dismissed because the Respondent's allegedly violative conduct had insignificant impact and was largely rendered meaningless because'' the Respondent ultimately ceased trying to exclude the pickets from its prop- erty after the police declined to order the pickets to leave. We agree with the judge's conclusion that the complaint should be dismissed. We do not, howev- er, adopt the reasons he provides for reaching this conclusion. Rather, we' conclude that the complaint should be dismissed only on the basis of the analy- sis set forth in our recent decision in Fairmont Hotel, 282 NLRB 139 (1986). In Fairmont, the Board reviewed NLRB v. Bab- cock & Wilcox Co., 351 U.S. 105 (1956), and its progeny and determined that in cases involving conflicts between Section 7 rights and property rights, the Board's task is "first to weigh the rela- tive strength of each party's claim." The Board found: If the property owner's claim is a strong one, while the Section 7 right at issue is clearly a 1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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. Fairmont Hotel, supra at 142 (fn. omitted). Factors that may affect the relative strength or weakness of an asserted property right include the following: the use to which the property in question is put, any restrictions placed on public access to the property or to the facility located on the property, and the size and location of the private facility. By way of example, the Board noted that "a single store surrounded by its own parking lot provided exclusively for the convenience of customers will have a significantly more compelling property right claim" than "the owner of a large shopping mail who allows the general public to utilize his property without substantial limitation." Id. at 141. Concerning the Section 7 right, factors that may affect the relative strength or weakness of such a right include the, following: the nature of the right asserted, the purpose for which it is being asserted, the employer that is the target of the activity, the situs of the activity, the relationship, of the situ's to the target, the intended audience of the' activity, and, possibly, the manner in which the right is being asserted. Id. at 142. By way of 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 compel- ling than handbilling and other informational activ- ity at locations other than the primary situs." Id. at 142. Applying the Fairmont, analysis to the facts of this case, we find the property right presented here to be relatively modest. The Respondent's super- market, is,7in a small shopping center that the gener'- al public is invited to patronize. A customer park- ing lot is provided directly in front of the super- market and the other stores, and there are three en- trances to the parking lot to provide ready access from the adjacent public streets. No measures are taken to restrict who enters through these en- trances. Moreover, the Respondent's supermarket shares the parking lot with the three other stores in the shopping center. Additionally, there is no evi- dence that the Respondent or any other merchant at the shopping center takes measures to ascertain that everyone who walks in front of the stores is a customer of one of them. Thus, it is apparent, and we infer, that the shopping center parking lot, in- cluding the portion immediately in front of the Re- spondent's supermarket, is open to virtually anyone and certainly to customers of any of the four stores in the shopping center. Inasmuch as access to the shopping center parking lot, including the portion in front of the supermarket, is so unrestricted and, we infer, is commonly used by persons who are not customers, employees, or suppliers of the Re- spondent's supermarket, we conclude, that the Re- spondent has retained only a limited property right claim to the shopping center parking lot, including the portion directly in front of the supermarket. The panel members disagree on their assessment of the Section 7 right presented here.4 We agree, 4 Chairman Dotson and Member Johansen conclude that the Respond- ent was entitled to rely on the letter the Union sent the Respondent in early September In that letter the Union disclaimed interest in represent- ing the Respondent's employees and stated that activities in which the Union thereafter would engage, including informational picketing, distri- bution of printed materials, or the boycotting of the Respondent, were "solely intended merely to notify the public of the store's non-Union status " The Union's picket signs, handbills, and conduct of the pickets were consistent with the prior disclaimer of any present intent to orga- nize or otherwise communicate with the Respondent's employees For the purpose of assessing the nature and strength of an asserted Sec 7 right under Fairmont, Chairman Dotson -and' Member Johansen believe that the Board should not go beyond the claim publicly asserted to divine some ulterior or incidental objective in the union activity, unless that ob- jective would remove the Act's protection They agree with their con- curring colleague that in other areas of Board law, where there is a statu- tory mandate to examine whether conduct is unlawful because it entails specifically proscribed objectives, the Board must examine overall con- duct in determining the validity of a disclaimer There is no correspond- ing mandate to question the validity of a-union's conduct disclaiming a particular Section 7 interest when examining whether an employer's con- duct is unlawful in denying access to private property On the contrary it would be both impractical and inequitable to require, as their concurring colleague suggests, that an employer consider the possibility of hidden, unstated, even disclaimed Sec 7 interests superior to the interests public- ly professed when that employer decides whether it may lawfully deny access In this context, the clearest and fairest Board rule governing the conduct of labor relations is that an employer should be entitled to rely on a union's unambiguous disclaimer of any Sec 7 claim superior to the one apparently asserted In accord with this view, Chairman Dotson. and Member Johansen would find that the Sec 7 claim asserted by the Union here did not involve the specifically disclaimed recognitional or organiza- tional interest Their assessment of the nature and strength of the Union's claim is based on the objective communicated to the employer, that is, the Union's informational campaign to protest alleged antiunion activities and to promote a consumer boycott The weight of this Sec 7 claim is not significantly different from that given to area standards protest activi- ty The protest of antiunion attitudes and of nonunion employment stand- ards both serve generally the institutional interests of a union and its members. Such activity' bears little relationship to a targeted nonunion employer's employees and consequently is of limited significance as it is not at the "core of the purpose for which the NLRA was enacted." Sears, Roebuck & Co Y San Diego County Council of Carpenters, 436 U S 180, 206 fn 42 (1978) Based on the foregoing assessment of the Union's Sec 7 activity, Chairman Dotson finds that the Respondent's property claim outweighs the Union's Sec 7 claim Consequently, Chairman Dotson would find that the Respondent's property right, although not especially strong, should nevertheless, under the Fairmont test, prevail over the Union's Sec 7 right without consideration of reasonable alternative means of communication, because the Respondent's property right clearly out- weighs the very modest Sec 7 right presented here Member Johansen does not evaluate the Sec 7 claim apart from the factor of reasonable means of communication Rather, he views this factor as significant in assessing the nature and strength of the Sec 7 claim Fairmont, supra He agrees with Member Babson that both the Continued L &° L,SHOP RFTE -'t. ,', 1039 J however, that the Union's Section 7 claim is,not clearly more compelling than the,<Respondent's property right claim5 and that, assuming the rela- tive equality of these interests, the General Counsel has failed to prove that the Union did not have a reasonable alternative means to communicate with its intended audience.6 As noted above, there is a public sidewalk adja- cent and parallel to the two city streets that border the Respondent's parking lot. Along Logan Street, which the Respondent 's supermarket faces, the sidewalk is 5 feet wide and there is a 9 -foot-wide grassy area not owned by the Respondent between the sidewalk and Logan Street . Thus, there was ample room for the pickets to engage in their ac- tivities on public property in front the Respond- ent's supermarket. Moreover, the displaying of picket signs from this location , particularly where the public sidewalk intersects the parking lot en- trances, would by itself afford the Union an ade- quate means to convey its message to the Respond- ent's customers. Handbilling at these entrances would supplement the Union's picketing as a means to convey its mes- sage. Although only between 5 percent and 25 per- cent of the motorists entering paused to accept handbills, at least those desiring to receive hand- bills had an opportunity to do so. Additionally, al- though handbilling at the entrances created some property and Sec 7 interests asserted in this case are otherwise relatively modest, albeit he characterizes the Sec 7 interest differently than does Member Babson Member Johansen also agrees with both his colleagues that the General Counsel failed to prove that the Union did not have a reasonable alternative means of communicating its message to its intended audience Agreeing further with Member Babson that this factor is deter- minative on these facts, Member Johansen joins his colleagues in finding that the Respondent's private property interests were not required to yield to the Union's See 7 claim and, accordingly, he joins in dismissing the complaint For the reasons stated in his separate opinion, Member Babson con- cludes that the Union 's activities were at least in part recognitional or or- ganizatonal in nature but, nevertheless , are a relatively less important type of Sec. 7 activity, and that, therefore, they are relatively equal in strength to the Respondent's property right at issue here Accordingly, in Member Babson's view, the Union's right, under Fairmont, to conduct its activities on the Respondent 's property depends on whether it is shown that the Union did not have a reasonable alternative means of communi- cating its message to its intended audience 5 The Respondent contends that the Union 's picketing is not protected under Sec . 7 of the Act because it is not area standards picketing or 8(b)(7)(C) proviso picketing and because picketing to protest an employ- er's antiunion attitude is not protected by Sec 7 We find no merit in these contentions. The Respondent further contends that the pickets forfeited the protec- tion of Sec 7 by engaging in misconduct during the picketing The judge did not rule on this contention or make the factual findings that would be necessary for its disposition In view of our conclusion , below, that the Respondent did not violate Sec 8(a)(1) by excluding the pickets from the Respondent's property, we need not pass on this issue For purpose of analysis, we assume that the pickets did not engage in misconduct suffi- cient to take their activities outside the protection of Sec 7 G Chairman Dotson makes this finding concerning the availability of alternative means only because it is necessary to produce a majority opin- ion where he and Member Babson differ in their assessment of the evi- dence in the initial stage of the Fairmont test degree of traffic backup at times , there is no evi- dei ,' e 1hAt the : traffic problem was so severe that it caused the police to stop the handbilling or other- wise attempt to regulate the traffic . The fact that a number of pickets picketed and handbilled on the public sidewalk for several hours on 19 November indicates that the Union itself regarded picketing and handbilling at this location to be worthwhile. Accordingly, as we find that picketing and hand- billing from the adjacent public property would have afforded the Union an adequate alternative means to communicate its message to its intended audience, we conclude that the actions taken by the Respondent to exclude the pickets from its property did not violate Section 8(a)(1) of the Act. We therefore shall dismiss the complaint. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. MEMBER BABSON, concurring. I agree with the lead opinion's assessment of the Respondent's property right and its discussion of whether the General Counsel showed that the Union had no reasonable means available to com- municate its message to its intended audience other than through access to the Respondent's property. I write separately, however, to express my dis- agreement with my colleagues' analysis of the Union's Section, 7 right. In Fairmont Hotel, 282 NLRB 139 (1986), we re- cently set forth a framework for analysis to be used in cases, such as this one, where a union asserts a right to have access to an employer's property in order to engage in activity protected under Section 7 of the Act. In Fairmont we stated that "it is the Board's task first to weigh the relative strength of each party's claim," i.e., the employer's property right and the union's Section 7 right . Id. at 142. In my view, however, my colleagues do not engage in an adequate evaluation of the Section 7 right' exer- cised by the Union in this case because they con- clude that the Respondent is entitled to rely on the Union's disclaimer of interest in representing the Respondent's employees. Based on this disclaimer, they conclude that the Respondent, in deciding whether to permit the Union to have access to its property, was privileged to assume that the Section 7 right being asserted by the Union was not organi- zational or recognitional . Rather than identifying the nature of the Section 7 activity, they merely refer to it by descriptive terms, "the Union's infor- mational campaign to protest alleged antiunion ac- tivities and to promote a consumer boycott." 1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The approach taken by my colleagues, I believe, is inconsistent with longstanding Board practice of assessing unions' disclaimers of interest, misappre- hends the Board's task in determining access claims, and fails to take into account important facts of the case. ` The Board normally does not simply accept at face value a union's disclaimer of interest in representing an employer's employees. Rather, the Board's practice is to examine the union's overall conduct in determining whether the disclaimer is valid or whether the union, in fact, has an organizational or recognitional objective. In numerous cases the Board has found such disclaim- ers of interest ineffective because of conduct by the union inconsistent with the disclaimer. The Board's approach in evaluating disclaimers of inter- est logically follows from the necessity of the Board, in deciding cases before it, to consider the conduct of parties and individuals for what it really is, not solely what the parties say it is. 2 This is par- ticularly important in labor controversies where the parties may benefit from a particular character- ization of the conduct in issue. Moreover, in determining whether a union is en- titled to access to an employer's property, Fairmont requires an 'assessment of the actual Section 7 rights and property rights at issue, not merely the parties' subjective perception of those rights. The outcome in such a case should be judged on the basis of the actual rights involved, not on the basis of the' parties' characterizations or perceptions. Taking the Union's disclaimer at face value with- out examining the Union's overall conduct is, in my view, inconsistent' with the analysis set forth in Fairmont. I find particularly troublesome my colleagues' position that in this case they may take the Union's disclaimer at face value, yet in other situations they would examine the Union's overall conduct in ana- lyzing the disclaimer. A charge of unlawful ' recog- nitional or organizational picketing under ' Section 8(b)(7) of the Act may arise out, of the same cir- cumstances that give rise to a charge of an employ- er's unlawful denial of union access to the employ- er's property. In such circumstances, it would appear, especially incongruous, as my colleagues i See, e g, Building Trades Council (Pettinaro Construction), 215 NLRB 624, 628 (1974), Carpenters Local 1622 (Paul E Iacono Structural Engi- neer), 250 NLRB 416 (1980), Teamsters Local 618 (S & R Auto Parts), 193 NLRB 714 fn 1 (1964) 2 See, e g, Austell Box Board Corp, 249 NLRB 345, 347 (1980) ("Not only is it proper for the Board to make such an independent evaluation [of the reasons asserted by an employer for an employee's discharge], it is obligated by the Act to draw its own inferences from all of the evidence - (footnote omitted), Open Taxi Lot Operation, 240 NLRB 808 (1979) (employees found not be be supervisors within the meaning of Sec. 2(11) of the Act despite their being designated as supervisors in contract signed by their employer) apparently would permit, for the Board to accept at face value a union's disclaimer of interest when considering the legality of the employer's conduct, i.e., the denial of access, but to look behind the dis- claimer and evaluate the union's overall conduct when considering the lawfulness of the union's picketing. .Additionally, allowing the Respondent to rely on the Union's disclaimer, as my colleagues do, has the unintentional result of overlooking the facts of the case. The Respondent makes no contention that it relied-on the disclaimer or that it took the dis- claimer into account when deciding to exclude the handbillers from its property. Moreover, the dis- claimer itself is not as unequivocal as my col- leagues seem to regard it. While disclaiming inter- est in representing the Respondent's employees, the Union's letter goes on to say that, activities in which the Union would thereafter, engage would be intended to notify the public of the Respond- ent's "non-union status." A union's publicizing of an employer's nonunion status has been held to in- dicate a recognitional or organizational object on the part of the union.3 The fact that a union's mes- sage is directed solely to the public does not pre- clude it from having an organizational or recogni- tional objective.4 Finally, having foreclosed the possibility of find- ing the Union's Section 7 activity to be organiza- tional or recognitional, my colleagues are faced with the task of finding some other classification into which to place the Union's activity. As they have ruled out the most appropriate category, they abstain from identifying the nature of the Union's Section - 7 activity. Rather, my colleagues use de- scriptive rather than analytical terminology. This approach does little to identify the specific Section 7 right at issue, which Fairmont would seem to re- quire. In-my view, it is apparent that the Union's pick- eting and handbilling constitute a form of recogni- tional or organizational activity. As noted above, a union's publicizing of an employer's nonunion status indicates a recognitional or organizational object. The Union's letter to the Respondent stated that the purpose of the Union's picketing and dis- tribution of literature would be to notify the public of the Respondent's nonunion status. The Union never rescinded this statement and none of the- Union's subsequent conduct was contrary to this stated purpose. Accordingly, it is apparent that the ' See Pettinaro Construction', supra, 215 NLRB at 628, Hotel & Restau- rant Employees (Crown Cafeteria), 135 NLRB 1183 (1962) " See Construction Laborers Local 1140 (Lanco Corp), 227 NLRB 1247 fn 2 (1977), Crown Cafeteria, supra, 135 NLRB 1183, 1185 L & L SHOP RITE Union's picketing had an organizational or recogni- tional object. The Act prohibits certain picketing that has as an object recognition or organization. There is no indication, however, that the picketing violated Section 8(b)(4)(C), or Section 8(b)(7)(A) or (B) of the Act. Additionally, it is clear that the picketing did not violate Section 8(b)(7)(C) of the Act be- cause it lasted only 2 days.-5 Moreover, the picket- ing arguably came within the second proviso to Section 8(b)(7)(C). See Pettinaro Construction Co., supra; Crown Cafeteria, supra. Accordingly, as the Union's recognitional picketing and handbilling did not violate Section 8 of the Act, it is protected under Sections 7 and 13 of the Act.6 In assessing the strength of the Union's Section 7 activity, it is unnecessary to resolve whether the Union's activity fits within the second proviso to Section 8(b)(7)(C) or is otherwise protected recog- nitional or organizational activity because, in either case, it is a rather attenuated form of recognitional or organizational activity. Thus, although it is ap- parent that the Union desires the Respondent to recognize it as the exclusive bargaining representa- tive of the Respondent's employees, the Union's message is directed to the general public, not to the Respondent or to the employees. Such Section 7 activity, in my view, is relatively less important than such Section 7 activity where the picketing has a recognitional or organizational message di- rected to the employer or its employees. Because I conclude that both the property rights asserted by the Respondent and the Section 7 right asserted by the Union in this case are relatively modest and, accordingly, relatively equal in strength, it is necessary under Fairmont to deter- mine whether the Union had reasonable alternative 5 Carpenters Local 2361 (Adams Insulation), 248 NLRB 313 (1980) (picketing for 1 day), Laborers Local 1290 (Walters Foundations), 203 NLRB 397 (1973) (picketing for 22 days) '' See Sears, Roebuck & Co v Carpenters, 436 U S 180, 225 fn. 9 (1978) (Brennan, J, dissenting on other grounds) (recognitional picketing is pro- tected at its outset and for up to 30 days thereafter follows from the Board's holding that area standards picketing is protected), NLRB v Teamsters Local 639 (Curtis Bros.), 362 U.S 274, 281-282 (1960) (right to engage in recognitional picketing is protected by Sec 13 of the Act and not limited or qualified by the Act except as specifically provided); see generally Garner v. Teamsters Local 776, 346 U S 485, 499-500 (1953) (the Act's restraint of specified types of picketing implies other picketing is to be free of other methods and sources of restraint, the Act prohibits only certain types of picketing; and public interest is served by freedom of labor to engage in picketing that the Act does not prohibit; state court injunction of nonemployees' peaceful organizational picketing found im- proper), cited in Longshoremen Local 1416 P. Ariadne Shipping Co, 397 U.S 195, 202 (1970) (White, J , concurring) (peaceful, nonobstructive picketing by nonemployees protesting substandard wage conditions is protected by the Act), Sears, Roebuck & Co, 168 NLRB 955, 956-957 (1967) (Sec 8(a)(3) violated by discharge of employee for picketing to protest employer's antiunion policy) For purpose of analysis, I assume, as do my colleagues, that the pickets did not engage in misconduct sufficient to take their activities outside the protection of Sec 7 1041 means to communicate its message to the general public which obviate the need to enter onto the Respondent's property. I concur with the lead opinion's treatment of this issue, and its conclusion that the General Counsel did not prove that there were no reasonable alternative means available to the Union to communicate with the general public. Accordingly, I concur in dismissing the complaint. William Wertheimer, Esq., for the General Counsel. John J. Mallon and Michael J. Rinkel, Esqs. (Briam M. Smith & Associates), of Troy, Michigan, for the Re- spondent. David Jarvis, of Kalamazoo, Michigan, for the Charging Party. DECISION STATEMENT OF THE CASE WILLIAM F. JACOBS, Administrative Law Judge. This case was tried before me on September 26 and October 1, 1980, at Lansing, Michigan. The charge was filed on November 20, 1979,1 by Retail Store Employees Union, Local 36, United Food and Commercial Workers Inter- national Union, AFL-CIO (the Union). A complaint issued on April 29, 1980, alleging that L & L Shop Rite, Inc. (Respondent) violated Section 8(a)(1) of the Nation- al Labor Relations Act by demanding that agents of the Union cease distributing handbills to the public in Re- spondent's parking lot and that they leave the parking lot, by threatening the agents with arrest.if they did not cease distributing the handbills and by causing the re- moval of the Union's agents from the parking lot. Re- spondent's answer denied the commission of any unfair labor practices. All parties appeared at the hearing and were afforded full opportunity to be heard and present evidence and ar- gument. The General Counsel and Respondent2 filed briefs. On the entire record, my observation of the de- meanor of the witnesses, and after giving due consider- ation to the briefs, I make the following FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a Michigan corporation, maintains its principal office and place of business in Lansing, Michi- gan, where it is engaged in the retail sale and distribution of food, groceries, and related products. During the year ending December 31, 1979, a representative period, Re- spondent, in the course and conduct of its business oper- ations, purchased and caused to be transported and deliv- ered at its Lansing store, various items of food and other goods and materials valued in excess of $50,000 which were shipped from points located outside the State of Michigan. During the same period, Respondent had gross revenues in excess of $500,000. The complaint al- i Unless otherwise indicated all dates are in 1979 2 Respondent filed a motion to clarify the transcript. The motion is granted. 1042, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD leges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The events of November 19 and 20 On November 19 the Union undertook informational3 handbilling and picketing at Respondent's place of busi- ness, the L & L Shop Rite store. The pickets arrived be- tween 11 a.m. and 12 noon and were 8 to 15 in number, all were staff people from the Union and other labor or- ganizations. Initially the pickets walked with their signs on the public sidewalk that borders the parking -lot on two sides of Respondent's property. During this initial period of picketing, about 10 or 15 minutes after it began„ one of the pickets,' Raymond Sones, a business agent for the Union, was approached by Stanley Levandowski Jr., Respondent's store mana-- er, who, after asking to read the picket sign, then did so and told Sones to stay on the sidewalk because the park- ing lot was private property.4 Meanwhile, Stan ley Le- vandowski Sr. approached some pickets and warned them to stay off his property, stating that if they stepped one foot on his property, he would call the police and have them arrested.5 The pickets stated that they had a right to be there and fully intended to picket and hand- bill in his parking lot and in front of his store. A little while later, Levandowski Jr. stopped a union official's as he walked in the parking lot toward the AFL-CIO's van parked there and told him to get back on the sidewalk, that he was trespassing, that he was 'on private property, and that if he did not get off, he would call the police. After these brief conversations between the Levan- dowski's and the pickets, two of the pickets7 moved from the sidewalk, through the parking lot right up to the front of the- store carrying both picket signs and leaf- lets. As the two pickets handbilled customers by the doorway to the store, they once again encountered Le- vandowski Sr. Levandowski Sr. told the pickets to get off his property and back on the sidewalk or he would call the police and have them arrested.8 They refused, so a The purpose of the handbilling and picketing was to notify the public of Respondent's nonunion status and antiunion attitude and to institute a customer boycott of the Shop Rite stores, indirectly to benefit union stores and their employees. Thus, the handbills being distributed listed 13 Shop Rite stores not to be patronized and 7 union shops to be patronized in their stead. 4 Sones and David Jarvis, president of the United Food and Commer- cial Workers Local 6, credibly testified concerning this incident To the extent that Levandowski's testimony differs, his is not credited 5 Levandowski Sr denied that this conversation ever took place He is not credited. 6 David Jarvis. 4 Carl Herwarth and Vic Yarrock 8 According to Herwarth's credited testimony. he called the police. Levandowski testified that he was concerned because of the presence of what looked like a mob and he worried -about his employees' safety. He was afraid,that "they could cause problems by intimidating customers and employees." Between. 12 noon and 1 p.m., a policeman arrived. The, policeman listened to both Levandowski Jr. and the pickets in the immediate area, now consisting of Her- warth; Yarrock, Sones, and Jarvis. The pickets claimed that they had a right to be in the parking lot to pass out literature. Sones, Herwarth, and Jarvis apparently did the talking. Levandowski countered that the parking lot was, private property9 and the Union did not therefore have the' right to be there. 10 After listening to the explanation from both sides, the policeman announced that he could not make a decision. He then called his superiors and subsequently a police sergeant arrived on the scene, The sergeant listened to the arguments of both sides then told the pickets that the parking lot was private property and that the pickets had to leave." 1 Jarvis then asked the sergeant whether he would arrest them if they did not leave. The sergeant re- plied affirmatively. After being threatened with arrest urless'they left the parking lot, the pickets moved 'back to the public side- walk,' 2 where they continued to walk up and down and pass out handbills to drivers entering the parking lot until sometime between I and 2:30 p.m., at which time some of them left while others remained. At 4 or 4:30 p.m. the pickets returned, this time num- bering between 25 and 30 staff members of the Union or sister unions., No employees of Respondent were in- volved in the picketing or handbilling. The pickets and handbillers remained on the sidewalk. About half an hour after the return of the pickets, as a group of them were standing at the border of the sidewalk and the parking lot, Levandowski Jr. came up to them and told them to remain on the sidewalk and out of the lot be- cause it was private property. The pickets continued to picket on the sidewalk until 6 or 6:30 at which time they left -for the day. On the morning of November 20, a group of pickets visited the-office of the county prosecutor to clarify their rights. ' They left the county prosecutor's office with the understanding that they were free to picket and distrib- ute handbills on Respondent's property in the parking lot and in front of the store without fear of arrest. The pros- ecutor advised the pickets that Levandowski was free to go to court to seek an injunction' or restraining order if he so desired but that he, the prosecutor, would not au- thorize a warrant in the absence of any fracas or other problems arising in conjunction with the picketing. About 12 noon on November 20, the pickets returned to Respondent's store. By this time they numbered about 9 According to Sones, Levandowski Jr offered no other reason why the pickets should not be permitted to continue to picket in the parking lot 10 When Levandowski's version of events differs, it is 'not credited 11 The pickets were also told either by Levandowski Jr. or by one of the policemen to move the van 12 The van was also moved 1043. 40. Two of the pickets 13 went into the parking lot an `their parking lot and on their property in front of the began passing out handbills . Levandntvski Jr. ' saw he came up to them, and told them that they were on pri- vate property and that they should get off or he would call the police.14 Nevertheless, the two pickets contin- ued to picket and handbill in the parking lot. About half an hour a policeman arrived once again. Levandowski Jr. told the policeman that the parking lot was private property and he wanted the pickets off of it. The pickets, in turn, explained to the police officer that somebody had talked to the prosecutor and that they had been told that they had a right to be there. Following the discussions among Levandowski Jr., the policeman, and the pickets, the problem apparently not being resolved, the police sergeant was again summoned. The sergeant confirmed that the pickets were, in fact, al- lowed to be in the parking lot. The police then left and the picketing resumed as well as the handbilling in the parking lot and,in front of the store, this time with more then just two individuals participating. The picketing continued, with no further incidents occurring thereafter, the Levandowskis resigning themselves to the pickets' presence on their property. To summarize briefly the above-described events: The Levandowskis became aware of a large number of pickets on their property or bordering it. They demand- ed that the pickets get off their property or ' be arrest- ed.1 s Whey they refused to leave, the police were called. The police moved' the pickets to the public sidewalk. The Union then advised the county prosecutor of their understanding of their right to picket on private proper- ty. The county prosecutor agreed with the Union, the Levandowskis were so informed, and they resigned themselves to having the Union picket and handbill in 13 John Berry and Dave Keene 14 Berry testified that Levandowski, "while no other person was around" threatened to kill him. Levandowski denied making such a threat. I credit Levandowski. 15 The Levandowskis probably committed a violation of Sec 8(a)(1) of the Act by issuing this warning, Giant Food Market, 241 NLRB 727 (1979), unless because of the nature of the picketing or some other collat- eral consideration, this set of circumstances requires a different finding. I do not, however, reach this question. store. The-picketing continued-thereafter without further interruption and without incident. Thus, the entire'matter was fully resolved within 24 hours at the local level, the ultimate result being total vindication of the Union's rights and privileges. The Union, however, despite having won total victory in its ephemeral mini-war of words with the Levandowskis chose on the afternoon of November 20 to institute prd- ceedings against them by filing charges in the instant case. The Region thereafter-issued a complaint. In my opinion issuance of a complaint in this case in no way furthered the cause of maintaining labor peace. Indeed, peace had already been procured and the pur- poses and policies of the Act fully effectuated when the Levandowskis voluntarily resigned themselves to the presence of union pickets and handbillers on their prop- erty. They sought no restraining order, nor injunction, and caused no further incidents. Initiation of a prolonged course of litigation under'these circumstances does not serve to ameliorate but rather to exacerbate conditions. Moreover, as the Board has noted in cases of similar minimal16 impact and moment: In view of the increasing need for expedition in the processing of cases, we have concluded that we ought not expend the Board's limited resources on matters which have little or no meaning in effectu- ating the policies of the Act. Thus, in this insubstan- tial case, we would find that the conduct involved, although it may have been in technical contraven- tion of the statute as interpreted by this Board, was nevertheless so insignificant and so largely rendered meaningless by Respondent's subsequent conduct that we will not utilize it as a basis for either a find- ing of violation or a remedial order. [Supra at 622.] I find the instant case susceptible to similar analysis and recommend that the complaint be dismissed in its en- tirety. 16 Musicians Local 76 (Wakely Show), 202 NLRB 620 (1973).