Medina Super Duper

728 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Center Street Market, Inc. d/b/a Medina Super Duper and United Food and Commercial Work- ers, Local 1. Case 3-CA-10697 15 October 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 10 September 1982 Administrative Law Judge Thomas A. Ricci issued the attached deci- sion. The General Counsel and the Charging Party filed exceptions and supporting briefs. 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, due to the numerous inaccuracies in the judge's de- cision, has decided to affirm the judge's rulings, but not his findings and conclusions. Instead, the Board makes its own findings, conclusions, and Order, as set forth below. On the entire record in this case, the Board finds 1. The Respondent is a New York corporation with its principal office and place of business locat- ed at 347 E. Center Street, Medina, New York, where it is engaged in the retail sale of meat, gro- ceries, produce, dairy products, household goods, and related products. During the year preceding the issuance of the complaint, the Respondent, in the course and conduct of its business operations, sold and distributed products, the gross value of which exceeded $500,000. During the same period of time, the Respondent received goods valued in excess of $50,000 transported to its place of busi- ness from suppliers which, in turn, received such goods in interstate commerce directly from States of the United States other than the State of New York. Accordingly, we find that the Respondent is engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. We find that the Union is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent operates a supermarket which is located on East Center Street in Medina, New York. The store is adjoined by a large parking lot, which may be entered through either of two drive- ways that are approximately 175 feet from the store. The Respondent shares one of these drive- ways with a drive-in bank. The Respondent's su- permarket and the bank are the only facilities locat- ed within this parking lot. Both the Respondent and the bank lease their facilities from a third party not involved in this case. At all pertinent times, the Union represented a unit that included all employees of the Respond- ent's store excluding the owner, manager, assistant manager, professional employees, guards, and su- pervisors, as defined by the Act. The Union and Respondent were parties to a collective-bargaining agreement that was in effect from 3 September 1978 until 13 September 1981.1 Following the expiration of the agreement, the parties were unable to agree on the terms of a new agreement, and the Union engaged in a strike. On 22 September the Union set up a picket line on the sidewalk bordering the two driveway entrances to the parking lot. The picketers wore union aprons that stated: The Medina Super Duper Employees on Strike For Fair Wages Fair Conditions U.F.C.W. District Local 1 AFL-CIO Additionally, they handed leaflets to drivers of automobiles that were entering the driveways. The leaflets read: WE ASK THAT YOU PLEASE DO NOT SHOP MEDINA SUPER DUPER WHILE EMPLOYEES ARE ON STRIKE Striking employees continued to picket solely at the driveway entrances until 9 November. On that date, in addition to the picketers at the driveways, the Union stationed two individuals, Richard Mer- rill and Don Melfy,2 directly in front of the store entrance. They wore union aprons and, according to Merrill, were instructed "to keep walking and not to stop and block traffic and people trying to shop." Merrill and Melfy distributed leaflets to incom- ing customers reading: While the employer has refused to negotiate with the union for fair wages and conditions of employment, Medina Super Duper manage- ment has committed unfair labor practices by intimidating, coercing and influencing its em- ployees individually to get rid of the Union. ' All dates are in 1981 unless otherwise indicated 2 The record is unclear about the proper spelling of this name 286 NLRB No. 73 MEDINA SUPER DUPER The regional director of the National Labor Relations Board has indicated intent to pros- ecute the employer for violation of the fair employment practices which are required by the N.L.R. Act. We urge you to support this strike by not patronizing this store and permitting working people to be free of intimidation and have fair standards of employment not by false promises but by a written contract. Thank you for your cooperation. UFCW District Local I After the two employees had distributed leaflets3 for 5 minutes, one of the Respondent's co-owners, Horst Dietrich, emerged from the store and warned them that he had telephoned the police, and they would soon arrive. Merrill and Melfy continued their activity for 5 more minutes until a police officer appeared. After conferring with Die- trich, the officer asked the picketers to leave the parking lot. Union Representative Nick Giannone approached the store at that point and asked what had happened. The officer stated that Dietrich wanted the picketers to leave the front of the store and that he would arrest them if they refused. Giannone protested that the picketers had a right to be there. In order to avoid arrest, however, Merrill and Melfy ceased picketing at the store en- trance. On 11 November the Union stationed three other individuals, Valerie McKee, Brenda Green, and Christina Anderson, in front of the store entrance. They did not wear union aprons nor carry picket signs. Rather, they walked back and forth in front of the store entrance, handing leaflets to entering customers. They asked the customers to read the leaflets but engaged in no other conversation, and the Respondent does not allege that they obstruct- ed the ingress of any of its customers. Pursuant to a telephone call by Dietrich, two police officers arrived at the store. Dietrich's part- ner, Dan Gilhooly, informed the officers that he would like to have McKee, Green, and Anderson arrested. The three employees were arrested and taken to the police station, where they were charged with trespassing. As of the time of the hearing in this case, these charges were pending.4 The General Counsel and the Union contend that by causing the strikers to be threatened with arrest on 9 November and by causing the strikers S There is no evidence that any potential customer decided not to enter the store on reading this leaflet 4 The Union's brief in support of its exceptions indicates that the local district attorney moved to dismiss these charges and the motion was granted 729 to be arrested on 11 November, the Respondent re- strained and coerced employees from participating in activities protected by Section 7 of the Act, thus violating Section 8(a)(1). For the reasons set forth below, we agree with this contention. In Fairmont Hotel, 282 NLRB 139 (1986), the Board held That in cases such as the instant one, the Board is required to weigh the relative strengths of the Union's Section 7 right and the Respondent's property right to determine whether the Respond- ent's conduct violated the Act. (Id. at 142.) If the property right is strong while the Section 7 right is clearly less compelling, the property right will pre- vail and no violation will be found. If the property claim is tenuous and the Section 7 right is clearly more compelling, the Section 7 right will prevail and the Respondent will be found to have violated the Act. In assessing the relative strength of the Union's Section 7 right, we note that a Union's right to picket in support of an economic strike is at the core of Section 7. The strength of the Section 7 right is enhanced by the identity of the picketers and leafletters. The picketing and leafletting activi- ty was performed by the Respondent's own strik- ing employees, rather than by individuals who were strangers to the dispute. The Respondent was the target of the activity and the picketing took place at the front entrance to the Respondent's fa- cility. Additionally, the intended audience of the picketing and leafletting was the potential custom- ers of the store and the picketing was intended to exert economic pressure on the Respondent. Fur- thermore, the employees performed the picketing and leafletting in a manner which was not disrup- tive of the Respondent's business. The number of leafletters was limited to two on 9 November and three on 11 November. The employees were in- structed to avoid obstructing the ingress and egress of customers. The contact between the striking em- ployees and the Respondent's customers was mini- mal and was limited to handing the customers leaf- lets and asking the customers to read them. Thus, the manner in which the Union's message was communicated did not diminish the strength of the Union's Section 7 right. Balanced against this compelling Section 7 right is the Respondent's less compelling property right. Here the property is a supermarket open to the public, where public access is encouraged. The strength of the Respondent's property right is fur- ther diminished because the Respondent had per- mitted public and charitable organizations to solicit in front of the store. There was evidence that rep- resentatives of the Veterans of Foreign Wars, the American Legion, and a firemen's organization 730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD have been involved in such activity. Thus, it ap- pears that the Respondent was enforcing its prop- erty right selectively. In sum, the Section 7 interest being asserted with respect to the primary economic strike activity here was a strong one, while the Respondent's property interest in limiting access to the front of its store was relatively weak. Accordingly, we find that the Section 7 right exercised by the Union out- weighs the Respondent's property right to exclude striking employees from picketing and handbilling in front of its store. Because the rights asserted by the Union and the Respondent are not relatively equal, we find that the availability of reasonable al- ternative means by which the Union could have communicated its message is not determinative under a Fairmont analysis.5 Therefore, we conclude that the Respondent vio- lated Section 8(a)(1) of the Act when it threatened to have the two employees arrested on 9 Novem- ber and had the three employees arrested on 11 November because they picketed and distributed leaflets near the entrance to the Respondent's su- permarket. CONCLUSIONS OF LAW By causing employees to be arrested, and by threatening employees with arrest, because they picketed and/or distributed leaflets at the entrance to the Respondent's facility in support of an eco- nomic strike protected by Section 7 of the Act, the Respondent has violated Section 8(a)(1) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative 5 In accordance with the prevailing view of the majority opinion in Fairmont, Chairman Dotson finds it unnecessary to consider whether rea- sonable alternative means of communication are available here because the Sec. 7 rights asserted by the Union substantially outweigh the proper- ty rights asserted by the Respondent . See Fairmont, supra at 143. Member Johansen considers the significant factor of reasonable alterna- tive means of communication as he evaluates the nature and strength of the Sec 7 claim Fairmont, supra at 143 In so doing, he believes that statutory protection of the right to engage in an economic strike is differ- ent from that accorded other forms of Sec. 7 activity at minimum, it re- quires that the Union have the right of confrontation , not merely a right to inform Picketing is by definition confrontational, and effective com- munication requires that the pickets be able to spot the target audience It is by their capacity to afford full exercise of the right to strike that the effectiveness and reasonableness of alternative means of communication are measured. Because of the nature of the Sec 7 right asserted here- picketing and handbilling in support of an economic strike-Member Jo- hansen believes that restricting the activity to the public sidewalk adja- cent to a driveway shared by a bank 175 feet from the store entrance would not enable the Union to adequately confront its target audience Thus, the General Counsel has proved that the Union had no reasonable alternative means of communication The absence of such means further supports, in Member Johansen 's view, the conclusion that the Sec 7 right in this case outweighs the Respondent's property right action designed to effectuate the policies of the Act. ORDER The National Labor Relations Board orders that the Respondent, Center Street Market, Inc. d/b/a Medina Super Duper, Medina, New York, its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Causing the arrest of, and threatening to cause the arrest of, individuals engaged in protect- ed economic strike activity near the entrance to its store. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Post at its facility in Medina, New York, copies of the attached notice marked "Appendix."e Copies of the notice, on forms provided by the Re- gional Director for Region 3, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. MEMBER STEPHENS, concurring. I agree with my colleagues that the Respondent violated Section 8(a)(1) of the Act by threatening to have the two employees arrested on 9 Novem- ber and having the three employees arrested on 11 November because they picketed and distributed leaflets near the entrance to the Respondent's su- permarket. This result is warranted under both the majority rationale in Fairmont Hotel' and my sepa- rate concurring opinion in that decision. In my view, the property right in this case is not as strong as the property right at issue in Fairmont and, considering all relevant factors, including the strong Section 7 right involved here, I find that the General Counsel has proved that the Union did not 6 If this Order is enforced by a judgment of a United States court of appeals, the words in 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." i Fairmont Hotel, 282 NLRB 139 (1986) MEDINA SUPER DUPER 731 have reasonable alternative means to communicate its message to the public. Accordingly, I join my colleagues in finding the 8(a)(1) violation. goods valued in excess of $50,000 from out-of-state sources. I find that the Respondent is engaged in com- merce within the meaning of the Act. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS 130ARD 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. WE WILL NOT have employees arrested, or threaten to have employees arrested , for engaging in economic strike activity in front of our store when their activities are protected by Section 7 of the National Labor Relations Act. 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. CENTER STREET MARKET, INC. D/B/A MEDINA SUPER DUPER Michael Cooperman, Esq., for the General Counsel. Jeremy Y. Cohen, Esq. (Flaherty, Cohen, Grande & Ran- dazzo), of Buffalo, New York, for the Respondent. Harold Cohen, Esq., of Rochester, New York, for the Charging Party. DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law .fudge. A hear- ing in this proceeding was held on August 5, 1982, on complaint of the General Counsel against Center Street Market, Inc. d/b/a Medina Supei Duper (the Respond- ent or the Company). The complaint issued on March 12, 1982, on complaint of United Food and Commercial Workers, Local 1, filed on October 15, 11981. The sole issue of the case is whether the Respondent violated Sec- tion 8(a)(1) of the Act by having striking employee pick- ets removed from its premises. Briefs were filed after the close of the hearing by the General Counsel and the Re- spondent. On the entire record and from my observation of the witnesses I make the following FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent here, a New York State corporation, with its principal place of business in Medina, New York, is engaged in the retail sale of meat, groceries, and produce. During the year preceding the issuance of the complaint in this business it sold and distributed products in excess of $500,000. During the same period it received II. THE LABOR ORGANIZATION INVOLVED I find that United Food and Commercial Workers, Local 1, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The Union that filed the charge in this case has for some years been the bargaining agent for the employees who worked in the Respondent Company's supermarket. Its last contract expired on September 13, 1981. Unable to reach agreement on a renewal , the Union called the employees out on strike. Nine days later, on September 22, the strikers started to picket the store, walking back and forth on the sidewalk along the street with signs, and distributing leaflets requesting customers not to pa- tronize the store. The word sidewalk, according to Web- ster's dictionary, means : "A walk for foot passage on the side of a street or road." Apparently the Union's appeal to the customers, who alone are invited to the parking lot, fell on deaf ears. I suppose this was in part due to the fact that the store is set back from the street a considerable distance, with the Company's private parking lot, where customers leave their cars when going in to shop, in front of the store. It must have been difficult for the pickets to hand their appeal leaflets to the customers while they were going through the entranceway to the parking area. So, the Union decided to move the pickets onto the Company's property right in front of the doors of the store, where they could hand the leaflets to the customers as they walked in. When this happened, on November 11, 1981, the Respondent called the police and had the three female striking pickets arrested for trespassing. The com- plaint calls this act by the store owners an unfair labor practice in violation of Section 8(a)(1) of the Act, an ille- gal interference with the statutory right of employees to engage in concerted activities. At the hearing, the General Counsel and the Union's attorneys advanced a number of theories supporting the complaint that are so completely at odds with the obvi- ous and clear facts that it is difficult to believe they said what they said. There is absolutely no merit in any of their arguments, and I shall recommend dismissal of the complaint. The property adjoining the Respondent's on the right is occupied by a bank, whose sole operator is a small structure with two teller windows that do business with bank customers who never get out of their cars, passing money in or out of the teller's windows hand-to-hand. It is not possible for anyone to walk up to those windows to transact business. The cars enter from the street, drive up the right to the rear of the two windows, turn down again, and stop on their way out along the left lane. The customers enter off the street directly onto the bank property, and leave the same way. That entranceway- so many unobstructed feet of land-is right next to the entranceway to the Respondent's parking lot. The open 732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD space off the sidewalk is very broad, the left part front- ing on the store's property and the right belonging to the bank. Between the two properties, there is no wall or fence. It is possible for a bank customer, when finished to go shopping by making a sharp turn to the right, just before reaching the street, and be on the Respondent's parking lot. It is also possible for any walk-in customer going to the store-again because there is no obstacle be- tween the two private properties-to walk on to the bank property first and then cross the dividing line to do his shopping, although I cannot imagine why anybody would want to do that. The General Counsel likens this physical situation to the shopping malls of today, often with 50 or more sepa- rate stores occupying a single property and where the general public is invited to stroll. See Scott Hudgens, 230 NLRB 414 (1977), and its progeny. All I can say is that this property, occupied by Respondent Company and by nobody else, to which no one is invited except its own customers, bears no relationship to any of the multiple company, or general public pictures presented in the cited cases. To compare this private parking lot to what has been called the new fashioned main street of Amer- ica is a contention that merits no serious comment from me. And the fact that a bank customer might sneak across the dividing line between the two properties to get to the store more quickly, or walk onto the store property-from the side or from the back!-serves not one wit to change the singular and very private nature of the Respondent's entire operation. i Immediately in front of the 7-foot wide entrance to the building, where the store is housed, there is poured con- crete, smooth, I suppose, so the customers will not bring dirt from the parking lot into the food sections of the store. Because that little floor area is paved as rock, and because the customers walk across it when going through the doors, the General Counsel called it a side- walk. Ergo, he said, because it has always been said that so long as pickets stay on the "sidewalk" with their "do not patronize" signs, they exercise protected rights, it follows that these three girls also had a right to picket right there-in front of the door-and never mind the fact they were over 100 feet inside the Respondent's pri- vate property, far away from the sidewalk as Webster defines it. It is but another way of saying that if pickets get no favorable results on the real sidewalk, it is only fair to give them the privilege of using the employer's property so they can effectively persuade potential cus- tomers to help them put the recalcitrant employer out of business. The pickets at the door handed leaflets to the customers saying: "We ask that you please do not shop Medina Super Duper while employees are on strike." Artful as the General Counsel's quotations from factu- al situations presented in other cases may be, nothing can change the fact that all the people that enter this parking I A more incredible theory was offered by the Union's counsel. Both properties, the Respondent's and the bank's, are owned by a certain Mr So-to-so, who rents the land to the two companies, by long-term lease no doubt Is this the same as the Scott Hudgens Company, which in the At- lanta Mall rents out to 60 distinct stores whose doors open onto a single esplanade, where the people of Atlanta congregate to walk and to look around' lot are customers of this one Company. Whether they walk or drive cars, they are not part of a mixed crowd of people who can be called the general public. Whether the pickets offered their strike leaflets to customers on the sidewalk or as they walked into the door of the store, it was the same people-and only those people to whom they desired access, to use a word often used by the Board in totally different circumstances . The truth is that when it is cold in Buffalo customers keep their car windows closed. Too bad for anybody who would like to talk to them. But absolute private property still re- mains no more than private property. NLRB v. Babcock v. Wilcox Co., 351 U.S. 105 (1956). Aware that this business of public verses private prop- erty rights was a fatal defect in his complaint, the Gener- al Counsel then shifted to another idea. This Company never had a no-solicitation rule applicable to its employ- ees. The three women who picketed at the door and were arrested were employees who had ceased work in order to strike. If they ever abandoned the strike and of- fered to return to work, and if there were openings for them, i.e., if they had not by that time been replaced, they would have had a good claim to a job. In this very limited and unpredictable sense, they were, I suppose, employees. But in the sense that they were at the moment persons who did not want to work, who chose to stay away, and were earning nothing, they were not employees at all. Again, to quote Webster's Dictionary: an employee is "one who works for wages or salary in the service of an employer." Nevertheless, the General Counsel said because the store employees at work are permitted to talk up the Union among themselves on their breaks, during lunch time, maybe in the locker room, when they were "off duty," why should these three "employees" be denied the same rights? After all, they were off duty, and they were, in however a techni- cal sense, still hopeful employees. Some contentions ar- ticulated in this proceeding are so hollow as to deserve no answer at all. This is not the case of employees passing union author- ization cards among themselves in the locker room, or in the Company's lunchroom. Nor is it the situation where union organizers-nonemployees-have difficulty reach- ing employees elsewhere and therefore may solicit mem- bership on the company's parking lot. There was no con- certed activity here among employees, that is, joining the strikers with those who refused to strike. Indeed, the General Counsel went out of his way to prove that the pickets were appealing to the customers, and only to the customers. If the striking women at that moment had the same rights as the women at work, could they too, in the cold November, go inside and use the restroom? If they did could the boss call the police and have them thrown out? When the three women went close to the door to give their leaflets to the customers, they stopped carrying picket signs, which had been worn as aprons on the side- walk along the street. This fact, says counsel for the Union, proves that they considered themselves employ- ees at that particular time and not pickets on strike! And then in his brief-with complete inconsistency-the Gen- MEDINA SUPER DUPER 733 eral Counsel quotes Justice Douglas, who wrote that a picket line, no matter where placed and no matter how vocal or silent, passes one message always, and it is for nobody to cross the picket line . Is it necessary to add that these girls, too, wanted everybody to stay out of the store so that the Respondent would knuckle under? Enough . Cf. S. E. Nichols of Ohio, 200 NLRB 1130 (1972). Oddly, the Respondent's brief is devoted to one argu- ment only, and that one is no good . It says that apart from the private property question, or anything else, the Company had a right to have the girls arrested because they were physically obstructing the entrance to the store. The evidence does not prove that at all, to say nothing of the fact the arrest charge was not "obstruc- tion" but "trespassing." The women were out there only a matter of minutes before they were removed. It is true that a few customers told the saleswomen inside they did not like to be handed unioneer leaflets. But then, there is no evidence anyone forced them to accept the piece of paper, or to read them. All they had to do was throw them away. The Respondent's real argument here is a counterpart to the Union's, and no more convincing. One says-if we cannot persuade the customers on the side- walk we have a right to get closer, on the private prop- erty. The other says-if the customers do not agree with the message passed by the strikers, they have no right to offer it to them. It all amounts to no more than a com- mentary on the realities of industrial strife. Sometimes the union wins-when the potential customers are sym- pathetic with the strikers' appeal. Sometimes the employ- er wins, when the customers are indifferent to the com- plaints of the strikers. It looks as though this last is what happened here. [Recommended Order for dismissal omitted from pub- lication.]