D' Alessandro'S, Inc

D ALESSANDRO S INC D'Alessandro's, Inc and United Food & Commercial Workers International Union, Locals #1614 and #368A, AFL-CIO, CLC Case 19-CA-14933 December 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On April 28, 1983, Administrative Law Judge William J Pannier III Issued the attached decision The General Counsel and the Charging Party filed exceptions and supporting briefs, and the Respond ent filed an answering beef 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, and conclusions only to the extent consistent with this Decision and Order The judge found that the Respondent did not violate Section 8(a)(1) of the Act by demanding that the Union's nonemployee pickets and hand billers leave the shopping center premises, threaten Ing arrest and calling the police, and posting a sign on its premises disallowing pickets Based on his as- sessment of the relative strengths of the Section 7 and property rights asserted, the judge found that the Respondent's property right did not have to yield to the Union's picketing and handbilling ac- tivities and therefore recommended dismissal of the complaint We disagree with the judge's character- ization of the Section 7 rights involved and with his analysis and conclusions Rather, as explained below, we find that the Respondent's denial of access to the Union constitutes disparate treatment of union activities in violation of Section 8(a)(1) The facts, as stipulated by the parties and estab- lished by uncontroverted testimony at the hearing, are set forth in pertinent part below The Respond- ent sells groceries and other retail items at its store in Garden City, Idaho 1 The Respondents employ- ees are not unionized In April 1982,2 one of the Respondent's employees, Gabe Young, approached the Union's president, Wayne Larsen, and ex- pressed an interest in initiating an organizing cam paign among the store's employees Larsen in- structed Young to determine if there was a substan i The Respondent leases the building and a portion of the adjacent area and has a nonexclusive easement for use of the remainder of the parking area The Respondent subleases a portion of its building to a bank Also on the site and adjacent to the Respondents store is a gas station Both the bank and the gas station are operated by entities separate and distinct from the Respondent 2 All dates are 1982 unless otherwise indicated 81 tial interest in unionization among the employees Young's employment was subsequently terminated by the Respondent in late April, and neither he nor any other employee had any further communica- tion with the Union Nevertheless, on April 21, the Union sent the Respondent a standard form letter advising "that this Local Union is presently in the position of actively organizing your employees " Despite the announced intention in the letter, there is no evidence that the Union actually engaged in any organizational activity at that time By letter dated August 25, the Union informed the Respondent that it intended to picket and hand- bill `solely for the purpose of advising the public that your store is non-union " The letter disclaimed any interest in organizing or representing the Re spondent's employees and stated that the pickets would not interfere with any deliveries Simultane- ous picketing and handbilling commenced on August 27, with two union members stationed at each of the Respondent's three customer doors None of the pickets were, or had ever been, em- ployees of the Respondent The picket signs con- tained essentially the same message as the handbills customers were requested not to shop at the Re spondent's nonunion store and to patronize specifi- cally named unionized stores instead On August 27, soon after the picketing began, Ross D'Alessandro, the Respondent's highest rank- ing manager, informed the union officials that they were trespassing When the pickets refused to move to the public sidewalks on the site's perime ter, D'Alessandro called the police 3 At the Re- spondent's request, the police informed the pickets that they would be arrested if they did not move away from the customer doors Pursuant to this arrest ultimatum, the pickets moved to the perime ter Commencing on August 27, the Respondent posted large signs on its premises stating, The pickets you see are not employees of D'Alessan- dro's or representatives of them" and "We are not engaged in a labor dispute and our employees are not represented by a union " The pickets confined their activities to the pe- rimeter from August 27 through October 19, except for a period of 3 to 4 days in mid October when they were instructed by the Union to hand bill neighborhoods surrounding the Respondent The perimeter picketing ended on October 19 when, without the Respondent's permission, the pickets returned to the Respondent's two southern- most customer doors When the pickets refused to 3 The Respondents store is located on an unfenced lot at the intersec non of two major thoroughfares Uncurbed sidewalks at the perimeter separate these thoroughfares from the parking lot used by the Respond ent s customers 292 NLRB No 27 82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD return to the perimeter, the Respondent again filed a complaint with the police This time, however, the police stated that they would not act, in the ab sence of allegations of violence, pending the out come of the instant litigation As no violence was alleged, the pickets were able to stay at the cus tomer doors, where they remained at the time of the hearing on January 20, 1983 The Union's pick- eting and handbilling at the customer doors did not cause any individuals to fail to pick up, deliver, or transfer goods, or to perform any other services In addition to calling the police, the Respondent on October 19 displayed a large banner in its front window, where it remained until mid-December 4 The banner stated, "We do not allow pickets of any kind in our parking lot or property " Despite the presence of this sign, beginning on October 19 several of the Respondent's employees, including its wine steward and checker, organized a demon- stration in support of the Respondent and in oppo- sition to the Union's picketing and handbilling The employees demonstrated directly in front of the store near two of the customer doors The demon- stration, which lasted for approximately 7 hours per day for about 7 consecutive days, occurred during business hours and involved approximately four to eight employees carrying signs in support of the Respondent 5 D'Alessandro was aware that the demonstration was being planned, and that it took place Additionally, at all relevant times, the Respond ent has permitted other organizations and individ- uals to use its property, free of charge, to distribute materials, solicit contributions, and sell items on the premises In this regard, the Respondent has per mitted the Girl Scouts, the Salvation Army, and the YMCA to engage in fundraising activities near its customer doors, in fact, during bad weather, the Girl Scouts have sold their cookies inside the store Cars, boats, and trailers have been displayed and advertised for sale in the parking lot, and Christ mas trees and firewood have been sold on the premises Further, during the Idaho State Fair the Respondent permitted the Jaycees to charge pa trons of the fair to park in the Respondent's lot Around the time that the Union sought to picket near the Respondent's customer doors, in late August, three different handbills were placed on the windshields of cars parked on the Respondent's lot, the record does not indicate the source or nature of the handbills The record does indicate, d The judge erroneously stated that the Respondent posted the banner on October 15 The complaint was amended at the hearing however to change the date to October 19 6 One of the signs said We love our store The record does not mdi cate and the judge did not find whether the Respondents employees were on or off duty when they engaged in the counter picketing however, that the Respondent's security officers were aware of these distributions, each of which took about 2 days to complete Additional handbill- ing occurred later in the fall In late August or early September, a large jet-propelled boat was dis- played on the premises, and five or six people dis- tributed descriptive literature Further, during the entire month of October, a van that was owned by a union member and displayed a "for sale" sign re- mained on the premises and was, in fact, used for breaks by the pickets Similarly, a trailer was dis- played on the parking lot Cider and pumpkin sales were also held on the Respondent's premises in the fall Moreover, although D'Alessandro testified that he does not allow any "controversial" activities on his property that would make customers uncom fortable,6 in late October a gubernatorial and a sen atorial candidate held a press conference within 20 feet of one of the Respondent's customer doors The conference began about 2 o'clock in the after- noon, and lasted for approximately one half hour The candidates discussed the right-to work law, which, according to one of the General Counsel's witnesses, was described by a candidate as "the most controversial issue of the election," and ex- pressed disapproval of the union pickets The Re spondent's employees were permitted to listen to the candidates As amended at the hearing, the complaint al leged that the Respondent violated the Act by (1) threatening the pickets with arrest if they did not move to the perimeter and summoning the local police to issue an arrest ultimatum on August 27, (2) posting a sign barring pickets on October 19, and (3) demanding that the pickets move to the pe rimeter and filing a complaint with the police when they refused to do so on October 19 The judge initially found that the Union's picket- ing and handbilling were nonorganizational and nonrecognitional publicity, having as its sole pur pose "an appeal to the Respondent's customers to stop patronizing it and to patronize its competitors instead because the Respondent is non Union " In light of this finding, the judge questioned whether the activity was protected by the second proviso of Section 8(b)(7)(C),' or whether this proviso ex 6 D Alessandro made this statement when asked by the General Coun sel whether the Union was not permitted to picket near the customer doors because of the content of its message The second proviso states That nothing in this subparagraph (C) shall be construed to pro habit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of or have a contract with a labor organization unless an effect of such picketing is to induce any individual em ployed by any other person in the course of his employment not to Continued D ALESSANDRO S INC 83 empted from prohibition only recognitional and or- ganizational picketing otherwise banned by Section 8(b)(7) Even assuming that the Union's activity was pro- tected under Section 7, however, the judge con cluded, based on an assessment of the relative strengths of the rights involved under NLRB v Babcock & Wilcox Co, 351 U S 105 (1956), that the Respondent's property right did not have to yield to communication of the Union's message Regard- ing the Section 7 rights asserted, the judge found that the Union's picketing and handbilling tended to endanger basic statutory objectives by disrupting the industrial peace and, particularly in the absence of an organizational objective by the Union, by generating a dispute that could only be resolved by driving the Respondent out of business Regarding the property right asserted, the judge, citing Giant Food Markets, 241 NLRB 727 (1979), enf denied 633 F 2d 18 (6th Cir 1980), found that the fact that the Respondent permitted other solicitations on its premises was not determinative of the Union's right in this case to picket and handbill near the Re- spondent's customer doors In this regard, the judge found that none of the other activities con ducted on the Respondent's premises posed what he described as "the danger to Respondent's very continued existence" as did the Union's picketing and handbilling The exceptions to the judge's decision focus in large part on the nature of the Section 7 activity here and its relationship to Section 8(b)(7)(C) The Union contends that its picketing was purely infor mational and was therefore permissible activity completely outside the purview of Section 8(b)(7)(C) The Union further contends that even if its April 21, 1982 letter added a recognitional aspect to the picketing, the picketing was protected by the second proviso because it was intended to inform the public of the Respondent's nonunion status The General Counsel contends that the Union engaged in legitimate informational picket- ing and that, pursuant to Hotel & Restaurant Em- ployees Local 681 (Crown Cafeteria), 135 NLRB 1183 (1962), supplementing 130 NLRB 570 (1961), enfd 327 F 2d 351 (9th Cir 1964), informational picketing is protected because of its ultimate orga nizational and recognitional aims, which can exist despite a disclaimer of an immediate interest in rep resenting certain employees The Union and the General Counsel also contend, in substance, that the judge did not properly apply the Babcock & Wilcox balancing test pick up deliver or transport any goods or not to perform any serv ices In its answering brief, the Respondent contends that because the Union's picketing was not organi- zational or recognitional , Section 8(b)(7)(C) is inap- plicable Citing Sears, Roebuck & Co v San Diego County District Council of Carpenters, 436 U S 180, 205-206 (1978), the Respondent maintains that even if the Union's picketing and handbilling is protect ed activity under Section 7, it is the sort of trespas- sory activity that, like area standards picketing, is unprotected in most instances As indicated above, the judge questioned wheth- er the Union's picketing and handbilling were pro- tected by Section 7 Initially, we find that the Union's picketing and handbilling to inform the public that the Respondent was nonunion was con ducted, at least in part, on behalf of employees of those unionized stores that the Respondent's cus- tomers were being asked to patronize That clearly is concerted activity that falls within the "mutual aid or protection" language of Section 7 See Jean Country, 291 NLRB (1988) 8 Further, although the Union's August 25 letter informed the Respondent of its intent to publicize the Respondent's nonunion status, and disclaimed any representational interest, and its overall con- duct conformed with its stated informational pur pose and did not suggest a present recognitional or organizational objective, to the extent that an ulti- mate recognitional object can be inferred we find that it is lawful under the second proviso to Sec tion 8(b)(7)(C) 9 We also disagree with the judge's analysis and conclusion that the Respondent did not violate Section 8(a)(1) of the Act In this regard, we find it appropriate to apply a "disparate treatment" analy sis that focuses on the Respondent's discriminatory conduct, rather than the "accommodation" analysis used by the judge As we noted in Jean Country, 8 See also Eastex Inc v NLRB 437 U S 556 (1978) (distribution of union newsletter discussing incorporation of state right to work statute into state constitution and presidential veto of increase in Federal mini mum wage held protected under the mutual aid or protection clause of Sec 7) 9In Crown Cafeteria above the Board in a dissenting opinion later adopted by the Board in response to a motion for reconsideration charac tenzed informational picketing pertaining to an employers failure to employ union members or have a collective bargaining agreement as having another object of ultimate recognition or bargaining 130 NLRB at 576 (dissenting opinion) approved in 135 NLRB 1183 The Board also held that the second proviso to Sec 8(b)(7)(C) carves out an exception to the general prohibition in Sec 8(b)(7)(C) on recognitional and organizational picketing when an election petition is not filed within a reasonable period not exceeding 30 days Thus the proviso permits picketing that although embracing a proscribed object of recognition or organization meets the two conditions stated in the proviso namely (1) the picketing has the purpose of truthfully advising the public that an em ployer does not employ members of or have a contract with a labor or ganization and (2) the picketing does not have the effect of curtailing the pick up delivery or transportation of goods or the performance of serv ices Here the Union s picketing and handbilling satisfied both condi tions 84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD above, at 12 fn 3, in Babcock & Wilcox, above, the Supreme Court set forth the following test [A]n employer may validly post his property against nonemployee distribution of union lit erature if reasonable efforts by the union through other available channels of communi cation will enable it to reach the employees with its message and if the employer's notice or order does not discriminate against the union by allowing other distribution [351 U S at 112, em- phasis added ] Subsequent to Babcock, in Sears Roebuck & Co, above, the Court reiterated For nonemployee union organizers to gain access, the union has the burden of showing that no other reasonable means of communi- cating its organizational message to the em- ployees exists or that the employers access rules discriminate against union solicitation [436 U S at 205, footnote omitted, emphasis added ] Disparate treatment is a "distinct analytical view" for finding whether a denial of access for Section 7 activity is unlawful Jean Country, above, at 12 fn 3 (citing Providence Hospital, 285 NLRB 320 (1987)) Here there is abundant evidence that both before and during the time that the Union sought to picket near the customer doors the Respondent s property was regularly the scene of a wide range of commercial and other activity unrelated to the operation of the store 10 The activity conducted on the Respondents premises included the sale of var ious items near the customer doors, handbilling on parked cars, the display of boats and vehicles- often for lengthy periods of time-in the parking lot, and the Jaycees' sale of the Respondent's park ing spaces to patrons of the state fair There is no evidence that the Respondent had a policy of bar- ring access to its premises by outside individuals or organizations Rather, it appears that the Respond ent granted virtually unlimited use of its property to outsiders for sales, solicitations, and distribu- tions, but singled out union activity for proscrip tion from its premises Further evidence of disparate treatment based on the content of the Union's message is the fact that 10 See Knogo Corp 262 NLRB 1346 1360-1362 (1982) modified 727 F 2d 55 (2d Cir 1984) (respondent promulgated and enforced a discrimi natory no access rule in violation of Sec 8(a)(1) by constructing and maintaining a fence so as to exclude a union representative from its park mg lot while continuing to regularly admit a nonemployee food vendor) Chrysler Corp 232 NLRB 466 476-477 (1977) (respondent discriminator fly applied a no access rule by directing a discharged employee who was disseminating union literature to leave its premises while permitting van ous nonemployee vendors on its property) in late October the Respondent permitted two po- litical candidates to hold a press conference on its premises within 20 feet of the middle customer door Despite D'Alessandro's assertion at the hear- ing that he did not permit controversial activities on the premises, the candidates addressed what one candidate termed the most controversial issue in the upcoming election-the right to work law Moreover, the candidates spoke in opposition to the union pickets All this suggests that the Re- spondent had no real objection to the presence of persons other than customers or employees on its property or even to outsiders who espoused con troversial views What the Respondent objected to was any expression of views favoring union organi- zation 11 Accordingly, based on all the foregoing, we find that the Respondent's denial of access to the Union to picket and handbill near its customer doors on August 27 and October 19, 1982, constitutes unlaw ful disparate treatment of union activities in viola tion of Section 8(a)(1) CONCLUSIONS OF LAW By discriminatorily prohibiting representatives of the Union from picketing and handbilling near its customer doors as part of their protected concerted activity, through its conduct of demanding that they leave the shopping center premises, threaten- ing arrest and calling the police, and posting a sign on its premises barring pickets, the Respondent has violated Section 8(a)(1) of the Act THE REMEDY Having found that the Respondent, D Alessan- dro's, Inc, violated Section 8(a)(1) of the Act, we shall order it to cease and desist and to take certain affirmative action that will effectuate the policies of the Act ORDER The National Labor Relations Board orders that the Respondent, D'Alessandro s, Inc, Garden City, Idaho, its officers, agents, successors , and assigns, shall 1 Cease and desist from (a) Discriminatorily prohibiting representatives of United Food & Commercial Workers Interna- tional Union, Locals #1614 and #368A, AFL- CIO, CLC from picketing and distributing hand- bills near its customer doors as part of their pro- tected concerted activity through its conduct of demanding that they leave the shopping center " In view of the above evidence of disparate treatment we find it un necessary to rely on the presence of employee counter pickets D ALESSANDRO S INC premises, threatening arrest and calling the police, and posting a sign on its premises barring pickets (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 store in Garden City, Idaho, copies of the attached notice marked "Appendix 1112 Copies of the notice, on forms provided by the Re gional Director for Region 19, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable 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 12 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 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 WE WILL NOT discriminatorily prohibit repre- sentatives of United Food & Commercial Workers Union, Locals #1614 and #368A, AFL-CIO, CLC, from picketing and distributing handbills near our customer doors as part of their protected concerted activity through its conduct of demand ing that they leave the shopping center premises, threatening arrest and calling the police, and post- ing a sign on the premises barring pickets 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 D'ALESSANDRO'S, INC 85 Terry J Jensen and Gail Streicker Esqs for the General Counsel Larry L Grant (Parkinson Lojek & Penland), of Boise Idaho for the Respondent Edward P Wendel of Washington D C, for the Charg mg Parties DECISION STATEMENT OF THE CASE WILLIAM J PANNIER III, Administrative Law Judge This matter was heard by me in Boise Idaho on January 20 1983 On September 28, 1982,' the Regional Director for Region 19 of the National Labor Relations Board [.,sued a complaint and notice of hearing based on an unfair labor practice charge filed on August 30 alleging violations of Section 8(a)(1) of the National Labor Rela tions Act (the Act) All parties have been afforded full opportunity to appear, to introduce evidence to examine and cross examine witnesses and to file briefs Based on the entire record, on the briefs filed on behalf of the par ties, and on my observation of the demeanor of the wit nesses, I make the following FINDINGS OF FACT I JURISDICTION At all times material, D Alessandro s Inc (Respond ent) has been an Idaho corporation with offices and places of business in Garden City Idaho where it has been engaged in the business of selling grocery products and other related items at retail During the 12 month period prior to issuance of the complaint a representa tive period, in the course and conduct of its business op erations Respondent derived gross revenues in excess of $500 000 and, further purchased and caused to be trans ferred and delivered to its facilities within the State of Idaho goods and materials valued in excess of $50 000 which were either received directly from sources outside the State of Idaho or, alternatively, from suppliers within the State of Idaho who in turn, obtained those goods and materials directly from sources outside the State of Idaho Therefore I conclude as admitted in the answer, that at all times material Respondent has been an em ployer engaged in commerce within the meaning of Sec tion 2(6) and (7) of the Act II THE LABOR ORGANIZATIONS INVOLVED At all times material United Food & Commercial Workers International Union Locals # 1614 and #368A AFL-CIO, CLC (the Union) have each been a labor or ganization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Issue This case poses what at least one court believed to be an impossible situation , Crown Cafeteria v NLRB 327 F 2d 351 353 (9th Cir 1964) that gives rise to an ex I Unless stated otherwise all dates occurred in 1982 86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tremely narrow issue under the criteria first enunciated in NLRB v Babcock & Wilcox Co 351 U S 105 (1956) must the private property right of an employer yield to picketing and handbilling publicizing the fact that that employer is nonunion and appealing to that employer s customers to cease patronizing it and to patronize, in stead, certain named unionized stores where the labor organization conducting the picketing and handbilling has disavowed expressly any interest in representing the picketed employers employees and, further, where there has been no specific showing that the picketed employ er s employment standards are lower than those of its competitors whose employees the picketing labor organ[ zation represents B The Facts As set forth above, Respondent operates a retail store in which grocery and other related items are sold, in Garden City, a suburb of Boise, Idaho Respondent s store is on a leased, unfenced lot at the intersection of Chinden Boulevard and Glenwood Street, two major thoroughfares on which the speed limit is 50 miles per hour Running adjacent to both Chinden and Glenwood are sidewalks that border the perimeters of the parking lot used by Respondents customers 2 The sidewalk adja cent to Glenwood is broken at two points by entrances/exits to the parking area that separates the sidewalk from Respondents store Further the sidewalk adjacent to Chinden is similarly broken at one point by an entrance/exit for that portion of the narking lot situat ed between the store and the sidewalk It is approximate ly 175 feet from the middle of the Chinden entrance to the nearest store door and approximately 400 feet from the Glenwood entrance to the nearest store door Respondents store itself, is a single building Save for a portion subleased to United First Federal Savings & Loan Association an entity completely separate and in dependent from Respondent, for branch bank operations Respondents own operations occupy all that building The only other structure located on this lot is a Publix Gasoline Station that is located on the corner of the lot adjacent to the point where Chinden and Glenwood intersect As is true of United First Federal Savings & Loan Association this gasoline station is operated by an employing entity that is separate and distinct from Re spondent Prior to April 21, one of Respondents employees ap proached Wayne Larsen the Union s chief executive of 2 A substantial portion of the parking lot area fronting on Glenwood Street is not included in Respondents leasehold but Respondent does have a nonexclusive easement for its use However this fact does not affect determination of the basic issue posed in this matter For while the General Counsels brief does raise the question of whether under state law Respondent has the right to order the pickets to move as far as the sidewalk when there is an issue as to whether he owns part of the park ing lot area no evidence has been presented by either the General Counsel or the Union that would provide an answer to that question The matter simply was not litigated and no contention has been made con cernmg whether under state law Respondent could expel the pickets/handbillers from the nonexclusive easement area of the parking lot To the contrary the General Counsel s brief states expressly that In determining the rights of the parties the issue as framed by the parties is whether the pickets should stand by the Store s doors or on the perimeter of the site ficer and president, indicat[ing] that he had a bunch of employees in his store that wanted to be organized And that he wanted to see what could be done on his behalf In response, Larsen simply told him if he could go back to the employees and if they could show a substancial [sic] interest on their behalf that we would take a look at it and make a determination if we would start an active organizing campaign with [Respondent] However nei ther that employee nor any other employee of Respond ent ever again contacted the Union Nevertheless, by letter dated April 21, Larsen notified Respondent that the Union is presently in the position of actively orga nizing your employees [at the above described store] However, that assertion was not an accurate one for Larsen testified that no organizing campaign ever was conducted among Respondents employees Indeed it cannot even be said that any activity short of a campaign ever had been conducted inasmuch as it is undisputed that the Union never distributed any authorization cards, received any signed cards, sent out any literature or held any meetings In fact, the Union s lack of interest in representing Respondents employees was stated express ly and specifically in a letter sent to Respondent by Larsen and another official of the Union on August 25, in which they announced their intention to commence picketing and handbilling at Respondents store Please be advised that we intend to picket and handbill your store solely for the purpose of advis ing the public that your store is non union We are not interested in nor are we seeking to organize or represent your employees and will engage in no ac tivity of an organizational nature Picketing and handbilling commenced on August 27 with two pickets/handbillers stationed at each of the three customer doors to Respondents store The picket signs used that day and on all subsequent days have been approximately 24 by 36 inches in size and have been of the type reproduced in Appendix A [omitted from publication] to this decision In essence, these signs requested that customers not shop at Respondent and in stead shop at certain other stores whose names are enu merated on the signs Similarly the handbills distributed on that day and on all succeeding days have been of the type reproduced in Appendix B [omitted from publica tion] and carry essentially the same message as the picket signs None of the pickets/handbillers have ever been employees of Respondent Larsen testified that he and another official of the Union had been the ones who had made the decision to picket and handbill at Respondent and further, that their purpose in doing so had been Basically to inform the public of the situation of [Respondent], that he was a non union store We were preparing for our upcoming food negotiations and [the] very fact that he was a non union employ er we felt put a drag on our situation as union mem bets In our stores we try to protect our members in any way we can We felt by advertising to the gen eral public and to our trade union movement that he was a non union employer that would put us in D ALESSANDRO S INC 87 better shape for collective bargaining with other food employers Within minutes of commencement of picketing and handbilling, Respondents officials told the Unions offs cials that the pickets/handbillers were trespassing and that they should move to the sidewalks adjacent to Chin den and Glenwood When the Union s officials refused to comply, asserting a right to picket and handbill near Respondents three customer doors, Respondent threat ened them with arrest and then summoned the police who, at Respondents behest, instructed the Unions offi cials and their pickets/handbillers that they would be ar rested if they did not move to the sidewalks adjacent to Chinden and Glenwood and confine their activities to no closer to the store than those locations The Union complied with these instructions until October 19 when the pickets began picketing and handbilling in the areas near the two southernmost customer doors to the store They have remained in that area since that time al though, on October 19 Respondent requested that they leave the walkway near its customer entrances and exit doors and again move to the sidewalk When this request was refused, Respondent filed a complaint with the police department requesting that the pickets be moved to those sidewalks Moreover on or about October 15 Respondent posted a large sign in the front window of its facility stating WE DO NOT ALLOW PICKETS OF ANY KIND IN OUR PARKING LOT OR PROP ERTY The complaint alleges that by having threatened the pickets with arrest unless they left the publicly accessible walkway and parking lot, by having summoned the police and thereby threatened the pickets with arrest if they did not move by having posted the sign on or about October 15, and by having demanded that the pickets leave the walkway and move to the sidewalk on October 19, Respondent violated Section 8(a)(1) of the Act C Analysis Because of the narrowness of the issue presented this perhaps, is a case more significant for what is not at stake rather than for what is at issue It is not a case in which a union seeks access to Respondents premises in order to organize Respondents employees preparatory to attempting to become their bargaining representative Cf Z LRB v Babcock & Wilcox supra To the contrary, the Union has disavowed expressly any desire to recognize or represent Respondents employees Nor is this a case where a union is attempting to contact employees for some legitimate union purpose unconnected with orga nizing them or obtaining recognition as their bargaining representative Cf Villa Avila 253 NLRB 76 (1980) as modified 673 F 2d 281 (9th Cir 1982) The message that the Union has been attempting to communicate, through its picket signs and handbills is one not even intended for Respondents employees Nor is this a case where an employer is attempting to prevent its own employees from engaging in activity sponsored by a union Cf Tri County Medical Center 222 NLRB 1089 (1976) For Re spondent's employees have not been among those who have engaged in the picketing and handbilling sponsored by the Union Nor is this a case, at least so far as the record discloses, where area employment standards are being undermined by those of Respondent Cf Giant Food Markets, 241 NLRB 727 (1979), remanded for fur ther proceedings 633 F 2d 18 (6th Cir 1980) Neither the General Counsel nor the Union has presented any specif is evidence on which a conclusion could be reached that Respondents employment standards tend to, or do, un dermine those of the Garden City/Boise area Finally, this is not a case where a union seeks access to an em ployer s premises to conduct its activity in a manner that avoids disruption of Respondents business Cf Montgom ery Ward & Co 256 NLRB 800 (1981), enfd 692 F 2d 1115 (7th Cir 1982) Rather, the very object of the Union s picketing, as stated clearly on its picket signs and handbills has been to divert customers from patron izing Respondents store and thereby to disrupt its busi ness It is accurate that, as quoted above, the Union s offi cials, particularly Larsen, felt that Respondents non union status put a drag on [the Union s] situation as union members and further, felt that publicizing Re spondent s nonunion status would put [the Union] in better shape for collective bargaining for other food em ployers ' Yet, at no point was this generalized and am biguous assertions supported by specific evidence show ing precisely in what manner Respondents nonunion status assertedly had been injuring the Union, nor by evi dence showing exactly in what manner Respondent s nonunion status would put the Union in better shape for collective bargaining with other food employers in the Garden City/Boise area Undoubtedly the Union is un happy that a nonunion retail grocery store exists in its ju risdiction Yet the Act is not intended to serve either party s individual interest, but to foster in a neutral manner a system in which the conflict between these in terests may be resolved First National Maintenance Corp v NLRB 452 U S 666, 680-681 (1981) Therefore, in the final analysis, this case involves no more than the issue of whether Respondent is obligated to endure trespassory picketing and handbilling having as its sole purpose an appeal to Respondents customers to cease patronizing it and to patronize instead its competitors be cause Respondent is nonunion The General Counsel and the Union argue that picket ing and handbilling is activity protected by Section 7 of the Act by virtue of the second proviso-the so called publicity proviso-to Section 8(b)(7)(C) of the Act However, there is considerable room for debate as to whether such a conclusion is warranted, that is, as to whether a proviso intended to exempt certain activity from a statutory proscription can, solely by virtue of that exemption be raised to the status of activity entitled to protection under Section 7 of the Act Moreover there is room for further debate specifically regarding wheth er that proviso could give rise to a Section 7 right where the activity described by the proviso is conducted, as in the instant case in a nonorganizational and nonrecogni tional setting Unless that proviso refers to picketing having as `an object' either recognition or organization, 88 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD it can have no meaning, for it would not be an exception or proviso to anything It would be referring to conduct not prohibited in Section 8(b) at all Crown Cafeteria supra at 353 That is proviso is not called into play unless a recognitional or organizational object has al ready been discovered NLRB Y Carpenters, 387 F 2d 170 173 (2d Cir 1967) In light of this interpretation of the second proviso to Section 8(b)(7)(C) of the Act there is a firm basis for concluding that any right which that subsection of the Act, of itself, does confer cannot exist in an area where, as here, the picketing labor orga nization, and those whom it represents, do not have and have explicitly disavowed having, a recognitional or or ganizational objective 3 These questions however are not ones that need be addressed in this case For, even assuming that Section 7 of the Act protects the right of employees and their rep resentatives to picket and handbill solely to publicize the nonunion status of a particular employer and to encour age its customers to patronize instead unionized coin petitors it does not follow that the nonunionized store s property rights must be sacrificed to communication of that message in a nonorganizational /nonrecognitional set ting The principle of Babcock is limited to this accom modation between organization rights and property rights Central Hardware, supra at 544 True in Giant Food Markets Y NLRB, 633 F 2d 18 (6th Cir 1980) the court observed that the Babcock & Wilcox rationale and accommodation logically applies to any protected union activity Id at 24 Yet, the Supreme Court has cautioned that [t]he locus of that accommodation, how ever may fall at differing points along the spectrum de pending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context Hudgens Y NLRB 424 US 507 522 (1976) see also Seattle First National Bank v NLRB 651 F 2d 1272 1276 (9th Cir 1980) Indeed an illustration of the fact that not all protected activity is entitled to equal weight in assessing the point at which property rights must yield was provided by the Court when it observed that several factors make the argument for protection of trespassory area standards picketing as a category of conduct less compelling than that for trespassory organs zational solicitation Sears Roebuck & Co Y Carpenters 436 U S 180 206 fn 42 (1978) Consequently to argue as the General Counsel and Union appear to do that the mere fact that an activity is protected by Section 7 of the Act automatically entitles the Union to the same accom modation as in an organizational /recognitional setting is inaccurate Rather, following the approach prescribed by the Su preme Court even before applying the Babcock & Wilcox factors to determine whether a particular employer s property right must yield to the particular Section 7 right being asserted in the particular circumstances pre sented there first must be an assessment of the nature and strength of the respective Section 7 rights and pri vate property right asserted in [the] given context Hud gens supra Ordinarily the Section 7 right being asserted in this type of case is rooted in an organizational or re cognitional effort-ultimately, the labor organization in volved is attempting to organize the employers employ ees and to become their bargaining representative Those objects are ones which are basic to the Act A basic purpose of the Act is to protect the selection of union bargaining representatives by a majority of the employ ees in a free and uncoerced manner United Dairy Farm ers Cooperative Assn v NLRB 633 F 2d 1054, 1066 (3d Cir 1980) The goal of federal labor policy as ex pressed in the Wagner and Taft Hartley Acts is the pro motion of collective bargaining to encourage the em ployer and representative of the employees to establish through collective negotiations their own charter for the ordering of industrial relations, and thereby to minimize industrial strife Teamsters Local 24 v Oliver, 358 U S 283 295 (1958) Here however the Union is not seeking to organize Respondents employees nor to become their bargaining representative Instead it has disavowed expressly such objectives, having eschewed completely even an attempt to allow Respondents employees to indicate through an organizing campaign whether they desire representation by the Union Thus Respondents picketing and hand billing, while it generally may enjoy protection under Section 7 of the Act, does not serve to promote the basic statutory objectives of protect[ing] the selection of union bargaining representatives by a majority of the em ployees in a free and uncoerced manner Dairy Farmers supra and of promot[ing] collective bargaining Teamsters Local 24 supra a Nor has the General Counsel or the Union identified any other basic purpose of the Act that is promoted by the picketing and hand billing of Respondent True as noted above it does pro mote the Union s individual interest in securing only unionized stores within its jurisdiction But, that is not an interest that the Act is intended to foster First National Maintenance, supra By contrast, the Union s activity actually or potential ly tends to endanger certain basic statutory objectives In the first place it is disruptive of industrial peace in the 3 Indeed that the publicity proviso to Sec 8(b)(7)(C) of the Act does not of itself create a general Sec 7 right is but strengthened by Con gress object in having enacted it For Congress did not include the pro viso as a vehicle for creating or expanding rights under the Act Rather Congress in enacting this proviso was doing no more or perhaps more aptly no less than placing its stamp of approval on what it envisaged as the constitutional right of labor organizations to freely disseminate certain information to the public through peaceful picketing Retail Clerks Local 324 (Barker Bros) 138 NLRB 478 487 (1962) affd 328 F 2d 431 (9th Cir 1964) Of course there is an obvious distinction between rights ans ing under the Constitution and those arising under Sec 7 of the Act See e g Central Hardware Co v NLRB 407 U S 545 (1972) 4 As must be implicit from the above mentioned delineation of the spectrum along which the nature and strength of the respective Section 7 rights and private property rights must be assessed Hudgens supra the fact that an activity may enjoy protection under Section 7 of the Act does not resolve the further issue of the degree to which it promotes basic statutory objectives It is true of course that some concerted ac tivity bears a less immediate relationship to employees interests as em ployees than other such activity Eastex P NLRB 437 US 556 567 (1978) In cases such as the one presented here analysis of the nature and strength of the Section 7 rights ibid requires something more than a simple statement that an activity is protected by Sec 7 It requires that the relationship of the activity to the purposes of the Act be ana lyzed as well D ALESSANDRO S INC 89 Garden City/Boise area The underlying purpose of this statute is industrial peace ' Brooks v NLRB 348 U S 96, 103 (1954) Indeed in light of the Union s expressed lack of interest in organizing Respondents employees and of becoming their bargaining representative the picketing and handbilling has generated a dispute that is beyond the power of Respondent or its employees to resolve in a manner consistent with the statutory objective of encourag[ing] the employer and the representative of the employees to establish through collective nego tiation[s], their own charter for the ordering of industrial relations, and thereby to minimize industrial strife Teamsters Local 24 supra 5 Here given the field on which the Union has chosen to wage its battle against Respondent the only manner in which this particular dispute could be resolved is by total customer abandon ment of Respondent, thereby driving it out of business and its employees out of the jobs that they hold Yet, it hardly can be maintained with any degree of persuasion that such a result is one contemplated by the Act See, e g NLRB v Burns Security Services 406 US 272 (1972), and First National Maintenance supra True, there are certain other avenues along which Re spondent could travel unilaterally without regard to the wishes of its employees to resolve the dispute underly ing the picketing and handbilling However these courses can hardly be said to be ones that are endorsed by the Act Thus Respondent simply could offer to rec ognize the Union and enter into a collective bargaining agreement with it Yet as such conduct would complete ly ignore the wishes of Respondents employees it can hardly be said to be a course that is consistent with their right to refrain from engaging in [organizational] activi ties NLRB v Typographical Union No 6, 632 F 2d 171, 180 (2d Cir 1980) To the contrary such a course would constitute a violation of Section 8(a)(2) and (1) of the Act Another avenue along which Respondent could travel to resolve the dispute with the Union, would be to fire its existing employee complement and then to hire employees who would support the Union Yet that type of conduct hardly furthers [t]he aim of the Act to give special protection to the economically vulnerable Machinists Lodge 743 v United Aircraft Corp, 337 F 2d 5 9 (2d Cir 1964), cert denied 380 U S 908 (1965) To the contrary, such conduct would lead to a violation of Sec tion 8(a)(3), as well as Section 8(a)(2) and (1), of the Act Under the 5th and the 14th amendments, the right to control private property enjoys protection by the U S Constitution Lloyd Corp v Tanner, 407 U S 551 567- 568 (1972) That right is not simply one that is to be con b By contrast the picketed employer in Giant Food Markets had it within its power at least to resolve the dispute presented there by rats ing its employment standards to those that prevailed in the area sidered only for the purpose of then automatically limit ing or disregarding it altogether-as a mere preamble to automatically applied exceptions True, as Babcock & Wilcox illustrates, an employers property right is not un limited but rather is subject to an accommodation to the exercise of Section 7 rights However as set forth above, not all Section 7 rights are entitled to equal weight in making that accommodation Hudgens v NLRB, supra Nor does property lose its private char acter merely because the public is generally invited to use it for designated purposes Lloyd Corp v Tanner 407 U S 551, 569 (1972) 6 In the final analysis as set forth above, the sole ques tion presented here is whether Respondents property right must yield to nonorganizational and nonrecogni tional publicity intended to dissuade customers from pa tronizing Respondent and thereby, in effect, to force Re spondent out of business Inasmuch as the Union has ex pressly disavowed to the procedures prescribed by the Act and instead, has chosen to resort to conduct that, at least, tends to generate results not promoted indeed pro hibited, by the Act, it cannot be concluded that Re spondent s property right should give way to the Union s activity Therefore, I conclude that Respondent did not violate the Act by the conduct alleged in the complaint which, in the final analysis, was reasonably tailored to protect the property right that Respondent was entitled to exercise and was not, of itself, the type of conduct that went beyond the bounds of that necessary to protect that right CONCLUSIONS OF LAW 1 D Alessandro s, Inc is an employer within the meaning of Section 2(2) of the Act, engaged in coin merce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act 2 United Food and Commercial Workers International Union Locals #1614 and #368A, AFL-CIO CLC are each a labor organization within the meaning of Section 2(5) of the Act 3 D'Alessandro s Inc has not violated the Act in any manner alleged in the complaint [Recommended Order for dismissal omitted from pub lication ] 6 Thus the fact that Respondent has permitted others to solicit sell and engage in other activities on the property that it controls while pro hibiting the Union s pickets/handbillers from engaging in similar conduct is not determinative in this case For that fact does not give rise to a constitutional right of anyone to use the property for his own purposes in disregard of the respondents wishes Giant Food Markets supra 241 NLRB at 729 Here of course none of these other activities posed the danger to Respondents very continued existence that the Unions picket ing and handbilling created