Polly Drummond Thriftway, Inc

POLLY DRUMMOND THRIFTWAY Polly Drummond Thriftway, Inc and Local No 1349, United Food and Commercial Workers International Union Case 4-CA-12947 January 17, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On June 21, 1983, Administrative Law Judge Stanley N Ohlbaum issued the attached decision The Respondent filed exceptions and a supporting brief,' and the General Counsel and the Charging Party filed answering 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 has decided to affirm the judge's rulings, findings,' and conclusions as modified and to adopt the recom- mended Order The Respondent operates a retail supermarket in the Polly Drummond Shopping Center in New Castle County, Delaware The shopping center consists of 17 units, of which the Respondent's is the largest building The shopping center is bound- ed on two sides by public roads There is a grassy area between the roads and the shopping center's parking lot From the front of the parking lot, where it abuts the grassy area, to the back of the parking lot, where it abuts the sidewalk in front of the Respondent's supermarket, is a distance of 156 feet There are three entrances to the shopping center There is no sign or any other posted restric- tion concerning who may enter the shopping center or use its sidewalks or parking area The Respondent occupies its building pursuant to a sublease with the previous tenant, Great Atlantic & Pacific Tea Company, Inc (A&P) A&P operat ed a supermarket at the location until January 1982 The Respondent subleased the premises in April 1982 s The Union had a collective-bargaining agree- ment with A&P prior to A&P's closure 4 The ' The Respondents request for oral argument is denied as the record exceptions and briefs adequately present the issues and the positions of the parties 2 The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 3 All dates are in 1982 unless otherwise indicated 4 The Union represented A&P s clerks and checkers 331 Union, however, did not represent the Respond ent's employees and did not have a contract with the Respondent The Union investigated the Re- spondent's wages and fringe benefits by talking with job applicants at the Respondent's supermar ket and employees of another area supermarket owned by Mike Zingo, the owner of the Respond ent The Union determined that the Respondent was paying wages "way below" the area standards and was providing virtually no fringe benefits By letter dated May 4 and signed by its president, the Union informed Zingo of its findings and stated it would picket the Respondent because of the Re spondent's alleged failure to maintain area stand ards wages and fringe benefits The Respondent, which had not yet opened its supermarket for busi- ness, did not respond to the Union's letter On May 11, the day the Respondent opened its supermarket, the Union began picketing on the sidewalk directly in front of the store Although the Respondent's supermarket was not scheduled to open until 10 a in, the Union commenced picketing at approximately 7 a in Four persons carried signs requesting customers not to patronize the Respond ent 5 THRIFTWAY Maintains Substandard Wages and Conditions Do Not Patronize Support Our Members In Their Effort to Make A Living Wage UFCW LOCAL No 1349 Shortly thereafter, Supermarket Manager James Sarver came out of the store and told the pickets, none of whom was an employee of the Respond ent, to move away from the front of the store and to move a car out of the parking lot Soon thereaf ter, Zingo arrived at the supermarket and told the pickets to "get out " None of the pickets responded to either Sarver's or Zingo's remarks At approxi mately 9 a in , Sergeant Sacco of the Delaware State Police, in response to a telephone call from Zingo, arrived at the store After speaking with Zingo, Sergeant Sacco told the pickets that Zingo had complained about their being on the sidewalk in front of the store Sergeant Sacco also informed the pickets that if they did not move they could be arrested for disorderly conduct, criminal trespass, or loitering Sacco suggested that the pickets sta- tion themselves at the shopping center entrance closest to the supermarket Heeding Sacco's warn ing, the pickets left the sidewalk and moved their 5 The signs stated 292 NLRB No 44 332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD picketing to this entranceway. The Union contin- ued its picketing of the Respondent at the shopping center entrance for about 3 weeks. The shopping center's property manager did not receive any complaints from tenants of the shopping center about the picketing on the sidewalk or at the en- tranceway. The judge concluded that the Respondent violat- ed Section 8(a)(l) of the Act by prohibiting the union pickets from access to the sidewalk directly in front of the Respondent's supermarket. The judge found that the Union's right to engage in area standards picketing was derived both from the Act and the first amendment to the Constitution and thus should not be limited except in compelling circumstances. In addition, the judge found that the Respondent lacked a private property interest that would entitle it to exercise control over the side- walk in front of its supermarket. Thus, the judge concluded that the Respondent's property rights must yield to the Union's Section 7 rights. We agree with the judge that the Respondent's threats to exclude, and its actual exclusion of, pick- ets from the sidewalk in front of its supermarket violated Section 8(a)(1) of the Act, but only for the following reasons.6 The Respondent's property rights at the shopping center facility were derived solely from its sublease with A&P, which granted to the Respondent all rights conferred on A&P pursuant to the terms of A&P's lease with the shopping center owner. That lease conveyed to A&P for a term of years a specified store building at the shopping center "with common rights to the parking lot . . . together with the use in common with other occupants of said Center of the parking spaces, areas, sidewalks , parking facilities, malls and any and all finished or improved areas outside all buildings." The lease obligated the shopping center owner to keep the sidewalks "clean and free and clear of encumbrances, obstructions, debris, ice and snow." The lease further provided that the shopping center owner "assume[d] all duties, re- sponsibilities, and liabilities in regard to mainte- nance, repairs, replacements, operation, supervi- sion, use and control of and to said spaces, parking areas, passageways, sidewalks, entrances, [and] exits." 6 We agree with the judge that the Union 's picketing constituted area standards picketing, which is protected under the Act. In so doing, how- ever, we find it unnecessary to rely on the judge 's analysis to the extent he finds that area standards picketing is protected by the first amendment and warrants more protection than organizational picketing. We also do not rely on any finding implicit or otherwise that the Re- spondent acted unlawfully in the course of a May 13 incident described in the testimony of picketer Donald C. McKay . The complaint did not allege this incident as a violation, and the judge admitted the evidence only as background. We agree with the judge that this lease did not convey to A&P the sidewalk in front of the leased store building. Rather, it granted to A&P only the right to use the sidewalk in common with the other occupants of the shopping center. Further, under the lease, "all duties, responsibilities, and liabilities in regard to . . . control of . . . sidewalks" were assumed by the shopping center owner. Under its sublease with the Respondent, A&P conveyed to the Respondent no greater interest than that which A&P itself possessed. Accordingly, we find it clear that the lease and sublease did not grant the Re- spondent a property interest giving it authority to exclude anyone from the sidewalk in front of its su- permarket. The Respondent merely had a nonex- clusive right to use the sidewalk, while control of the sidewalk remained with the shopping center owner. Thus, while the sidewalk in front of the Re- spondent's rented supermarket building was private property, it was not the Respondent's property, and the Respondent lacked the right to exclude anyone from it.7 Under these circumstances, the Board's decision in Barkus Bakery is controlling.8 There, the re- spondent, a corporation, operated a bakery on premises leased to it by the respondent's owner, an individual. The owner also owned the adjacent parcel of land, which he leased to the proprietor of a tavern. In the latter's lease, the owner reserved for the bakery and its employees "the right of . . . use in common with [the] Lessee of the parking and passage areas of the demised premises for the purpose of traversing the area and parking there- on."9 Pursuant to this reservation, employees of the bakery parked their vehicles on the property leased to the tavern operator. After union organiz- ers began distributing leaflets to employees of the bakery in this parking area, the respondent ordered the organizers to leave the premises. When they did not do so, the respondent summoned the police. After some discussion, however, the police 7 The Respondent relies in part on a clause of the lease providing that the lessee "may peaceably and quietly have, hold and enjoy ... the de- mised premises, the areas, spaces, parking facilities , passageways, [and] sidewalks." This provision, a convenant of quiet enjoyment, is merely a promise by the lessor that the lessor possesses good title to the property and that for the term of the lease the lessee will not be evicted by an- other having better title to the property. Thus, it is merely an assurance against defective title, and it gives the lessee a cause of action against the lessor if the lessor's title turns out to be defective and the lessee is evict- ed. It does not grant the lessee a right to take action against others who disturb the lessee's "quiet enjoyment" of the premises. Further, it is not a promise to the lessee that others will not "disturb" the lessee in the con- ventional sense . See generally 20 Am . Jur. 2d Convenants §§ 97-98 (1965). Accordingly, the Respondent's reliance on this convenant to show that it had a property right to exclude the pickets from the proper- ty is misplaced. 8 282 NLRB 351 (1986), enfd . mem. sub nom . NLRB v. Caress Bake Shop, 833 F.2d 306 (3d Cir. 1987). 9 Id. at 352. POLLY DRUMMOND THRIFTWAY left and organizers remained The judge, whose de- cision was adopted by the Board, 10 found that the respondent did not control the parking lot from which it had attempted to eject the union organiz ers and that the lease gave the respondent parking privileges on the property but not the right to exer- cise dominion over strangers on it Accordingly, the judge concluded, and the Board agreed, that the respondent violated Section 8(a)(1) of the Act by attempting to exclude organizers from the park- ing lot, thus interfering with protected organizing activity 11 Barkus Bakery is indistinguishable from the present case Here, as there, an employer interfered with protected activity by attempting to exclude union representatives from property adjacent to the employer's property that the employer had a right to use, but over which the employer possessed no property right giving it control Indeed, in the present case the interference was greater, in that the Respondent succeeded in excluding the union representatives from the adjacent property It is clear, therefore, that by threatening to exclude, and by excluding, the pickets from the sidewalk in front of its supermarket the Respondent interfered with protected activity in violation of Section 8(a)(1) of the Act This conclusion is consistent with our recent de- cision in Jean Country 12 There, in setting forth an analysis for resolving conflicts between property rights and rights granted under Section 7 of the Act, we noted that, as a threshold matter [T]here is an initial burden on the party claim- ing the property right to show that it has an interest in the property and what its interest in the property is A party has no right to object on the basis of other persons property interests, and an employer's mere objections to having union pickets outside its establishment does not in itself rise to the level of a property interest Jean Country, above, at 13 fn 7 It is apparent that the threshold showing required under Jean Country has not been made here Accordingly, we adopt the judge's conclusion that the Respondent violated Section 8(a)(1) of the Act by threatening to ex- clude, and excluding, the union pickets from the sidewalk in front of its supermarket 10 In adopting the judges decision the Board did not rely on the Judges finding that the union organizers never set foot on the respond ents property Rather the Board relied on the fact that the respondent was attempting to prevent the organizers from distributing literature any where in the parking lot 282 NLRB at 351 fn 2 11 Id at 354 12 291 NLRB 11 (1988) ORDER 333 The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Polly Drummond Thriftway, Inc, New Castle County, Delaware, its officers, agents, successors, and as- signs, shall take the action set forth in the Order Marvin Weinberg Esq for the General Counsel Martin R Lentz Esq (Pelino & Lentz), of Philadelphia Pennsylvania for the Respondent Howard S Simonoff Esq (Tomar Parks Seliger Simonoff & Adourian), of Haddonfield New Jersey, for the Charging Party DECISION Preliminary Statement STANLEY N OHLBAUM , Administrative Law Judge This proceeding 1 under the National Labor Relations Act (Act), was litigated before me in Philadelphia Penn sylvania, on December 1, 1982 All parties were repre sented by counsel throughout, and were afforded full op portunity to present evidence and contentions, as well as to submit posttrial briefs and proposed findings and con clusions received after unopposed application for time extension by January 26 1983 The latter as well as the entire record , have been carefully studied The basic issue presented is whether peaceful nonor ganizational area standards informational union picket ing on a sidewalk outside of a leased store in an open, unenclosed non mall shopping center may be prevent ed by a store lessee without violating Sectin 8(a)(1) of the Act On the entire record2 and my observation of the testi monial demeanor of the witnesses I make the following FINDINGS AND CONCLUSIONS I JURISDICTION 1 At all material times Respondent Polly Drummond Thriftway Inc a Delaware corporation has operated a retail supermarket store at Polly Drummond and Linden Hill Roads3 in Newark Delaware with annual gross revenues exceeding $500 000, and interstate annual merchandise purchases and receipts exceeding $5000 di rectly in interstate commerce I find that at all material times Respondent has been and is an employer engaged in interstate commerce within the meaning of Section 2(2) (6), and (7), and the i Complaint issued by the Regional Director for Region 4 on July 1 growing out of a charge filed against Respondent Employer on May 19 as amended June 21 1982 by the above Union The General Counsels unopposed posttrial motion (G C Br 2 fn 4) to deem his complaint tech nically amended to conform to the proof in regard to the filing and serv ice of the amended charge (in evidence) is granted 2 Trial transcript as corrected in accordance with parties undated stipu lation filed on January 19 1983 incorporated into the record 3 Complaint par 2(a) admitted in the answer incorrectly identifies Linden Hill or New Linden Hill as New London Road See infra fn 4 e 334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Charging Party Union is a labor organization as defined in Section 2(5) of the Act ALLEGED UNFAIR LABOR PRACTICES As has been indicated , this case involves the propriety of peaceful nonorganizational , area standards ' informa tional picketing by a labor organization on the public sidewalk of an unenclosed suburban collection of retail stores called a shopping center ' The controlling facts are largely undisputed A Facts as Found 1 Locus The locus of the eqisode to be described , known as "Polly Drummond Shopping Center, on Polly Drum mond and Linden Hill (or New Linden Hill) Roads4 in New Castle County, Delaware, is an offroad aggregate of 15 retail stores including two banks and three eateries/drinkeries, with a nearby separate building con taming a school and a karate establishment, and an other separate nearby 4 story office building (Jt Exh 1 ) All have common or shared public sidewalks and a 366 space parking area, of which 115 spaces (including a public bus stop) are in front of and adjacent to Respond ent s store The sidewalk in front of Respondents store is around 6 or 7 feet wide, with a 10 foot 10 inch by 34 foot 4 inch entrance vestibule" projecting onto the side walk at the store s entrance (Jt Exh 1) The entrance/ exit doors to Respondents store are however, located on the sides and not the front of this vestibule (R Exh 3) Conventional5 access to this aggregate of retail stores and other establishments-including the banks school and commercial office building-denominated a shop ping center, is from two lane vehicular public roads or highways There is no paved sidewalk or pedestrian walkway as such abutting the outer or inner periphery of the shopping center, but only steadilly trafficked paved motor (and pedestrian) roads or highways on the outside and trafficked motor (and pedestrian) roads and parking areas (including a public bus stop in the parking area in front of Respondents store) on the inside (G C Exhs 3A, B and C R Exhs 3 4 and 5 2 Episodes Local No 1349 United Food and Commercial Work ers International Union (Union or Charging Party), which represents and bargains collectively on behalf of most food industry and supermarket employees (except butchers) in the Delaware Pennsylvania area had a col lective labor agreement covering employees of the super market store with Great Atlantic & Pacific Tea Compa ny, Inc (A&P) until the latter (A&P) closed that store in early 1982 and it was taken over by Polly Drummond Thriftway, Inc (Respondent), which commenced operat ing at wage scales way below what the industry stand and was in the area and with virtually no fringe ben efits " 8 For this reason after a fruitless discussion be tween the Union and Respondents owner, "Mike Zingo, on May 4, 1982, the Union sent Respondent a letter? stating Dear Mr Zingo It has been determined that your company does not maintain wages and conditions of employment, including fringe benefits established through collec tive bargaining by this union Your reduced sub standards of employment threatened our members in their efforts to keep the wages and benefits they have won over the years As a result we shall picket your stores8 to notify potential customers that you operate under sub standard conditions of employment We are not seeking to cause or induce any person , in the course of his employment , to cease doing business or work ing for you Should that happen , please call me and I shall do whatever I can to correct that situation Our efforts are aimed at your customers We wish to make it clear that we are not seeking recognition by your company as bargaining agent for any of your employees In the event you can demonstrate that you meet our area standards, we shall remove our picket line Very truly yours, /s/ Norman L Tyrie Norman L Tyrie President NLT de cc Gary Duckett Mid Atlantic Region Because the Union received no response to this letter, it commenced picketing on the public sidewalk outside of Respondents store when it opened on May 11 1982 At no time was there any leafletting On the opening day, the Union utilized four pickets thereafter two to six The picket signs printed in heavy dark letters on white cardboard approximately 22 inches long and 14 inches wide Qt Exh 2), carried on the pickets chests by strings suspended around their necks (R Exhs 5 and 6) state 4 Location so shown on stipulated sketch (Jt Exh 1) The ground lease (R Exh 2) and sublease (R Exh 1) identify Linden Hill as New Linden Hill Road 5 I e for aught that appears it may theoretically be possible for an oc casional pedestrian to traverse the broad circumferential grassy areas and walk beyond 6 Uncontroverted testimony of Union Secretary Treasurer Joseph Otto r G C Exh 2 8 Respondent maintains only one store-that here in question-in the Polly Drummond Shopping Center which is in or near Newark Dela ware Its owner Mike Zingo maintains another such establishment under the name Z Mart Thriftway in Wilmington Delaware POLLY DRUMMOND THRIFTWAY 335 THRIFTWAY Maintains Substandard Wages and Conditions Do Not Patronize Support Our Members in Their Effort to Make a Living Wage UFCW LOCAL No 1349 The picketing was at all times purely informational in purpose and character At no time did it have an organs zational purpose, and I so find I further find that at all times the picketers comported themselves in a peaceful and orderly fashion, were ambulatory, and that at no time did any of them in any way interfere with vehicular or pedestrian traffic at or around Respondents premises or at any point leading thereto or therefrom, including entrance or access to or egress from Respondents store or to the Polly Drummond shopping center On or immediately after commencement of the picket ing on May 11, 1982, Respondents manager, James Sarver, who had been transferred by Respondent from its Wilmington shopping center," emerged from the store and very harshly" directed the picketers to get away from the front of the store' and to "move [your] car out of the parking lot So did Mike Zingo, who told them to get out None of the picketers responded Approxi mately 10 minutes later Delaware State Police Sergeant and Road Supervisor Sacco appeared in answer to Re spondent's call As of this time, no customers had yet ar rived After entering and emerging from the store Ser geant Sacco informed the picketers that the store was complaining and that if the picketers did not leave they would be arrested for disorderly conduct criminal tres pass or loitering 10 he suggested to them that they proceed to the outside highway access to the shopping center (Jt Exh 1, see also G C Exh 3A) almost 200 feet distant which they did, and also that they seek legal advice Thereafter the picketers confined their picketing to the three highway vehicular entrances/exits (Jt Exhs 1 2 and 3) to the shopping center-at substantial dis tances from Respondents store-until the picketing was altogether discontinued about 3 weeks later, shortly after the filing on May 19, 1982 of the charge here In the early evening of May 3, 1982 Donald C McKay Jr a union picketer wearing his informational placard (Jt Exh 2) at a vehicular highway entrance to the shopping center (Jt Exh 1), observed Owner Mike Zingo speak to a uniformed state policeman) i in front of 9 See supra at In 8 10 Sergeant Sacco acknowledged at the trial that he advised the picket ers that they could [be] removed pursuant to the Delaware Criminal Code and arrested for disorderly conduct criminal trespass if the owner so desired or loitering as well as restrained by civil court order i 1 Respondent Owner Mike Zingo acknowledged at the hearing that Delaware State troopers in official uniform were in his pay to direct traffic getting out of the shopping center if there was any problems [g]etting in and out of the entranceway (it Exh 1) According to Zingo at the hearing there was nothing visible to indicate these police men were not on official duty while so in Respondents private employ Respondents store to do something about McKay The uniformed policeman immediately approached McKay and directed him to remove his signs (Jt Exh 2) from his car parked in a space near where McKay was stand ing at the vehicular highway entrance (Jt Exh 1) and to move his car elsewhere in the parking lot McKay coin plied The policeman further ordered McKay not to picket at that or any other entrance to the shopping center, but to confine his picketing to the outside road grassway (grassy area 58 feet 3 inches wide on it Exh 1) between entrances or, if not, the picketers would find it unsafe I credit this testimony of McKay, who im pressed me as a forthright and candid witness, it being further noted that, without explanation, the policeman in question was not called to controvert McKay's testimony in any way I also credit McKay s additional testimony to the effect that for practical purposes all motorists en tering the shopping area, past where he had been stand ing on the edge (R Exh 5), merely drove right in with out stopping that there was no way to determine who was destined for any paticular store, that he observed only perhaps 15-20 percent of these going into Respond ent s store, and that neither he nor any othe picketer blocked traffic at any time 3 Leasehold Testifying as Respondent's witness, Michael Conte, property manager since 1978 of the Polly Drummond Shopping Center, swore that tenants there execute a basic form lease containing no prohibition against picket ing, that there is no restriction on who may or may not park in the shopping center nor regarding display of any sign in or outside of any car so parked, and that there was no complaint to the shopping center management nor any discussion with him by Respondent or any other tenant concerning the picketing He also confirmed that there is a public bus stop located in the shopping center There is no evidence of any posted sign or other re striction regarding who may enter the shopping center or any store or establishment therein, or who may use its sidewalks or parking area for any purpose The basic and supplementary ground leases (R Exh 2) and sublease (R Exh 1), the latter a 9 year sublease from April 15, 1982, to December 30 1991, from A&P as lessor to Respondent as lessee, contain no provision whatsoever proscribing, or requiring or giving the power, right, or privilege to the lessee to proscribe in formational or other picketing or prohibiting or restrict ing the use of any sidewalk or parking space for or from any purpose or use Sidewalks and parking areas are ex plicitly required to be for use in common with other oc cupants of said [Shopping] Center' (R Exh 2, printed lease pp 1 and 2), and dominion and control over them as well as maintenance thereof, is reserved to the lessor (id at p 2)-not Respondent These provisions are incor porated into Respondents current sublease (R Exh 1, p 2, pars 4 and 5A p 3, par C ) 4 Parties current positions Although, as indicated above, the Union ceased its picketing soon after it filed the charge resulting in issu 336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ance of the complaint by the Board s Regional Director it continues to maintain that it has that right The Gener a] Counsel agrees On the other hand, Respondent Owner Mike Zingo continues to insist that he will again call the police in the event of resumption of any picket ing to remove any person picketing anywhere along the course of the 146 foot sidewalk in front of his store Zingo acknowledges that at no time has he sought court or Board intervention by way of injunctive relief or oth erwise, he has been content to rely on summary police action He also acknowledges that no other merchant in the shopping center has complained or even spoken to him at any time about picketing at any place B Discussion and Resolution This case renews the question hoary in court and Board annals of the right to picket peacefully on proper ty perceived by the picketee as private and therefore immune from such nonconsensual use The salient guid mg principles distilled from an extensive review of to spectrum of decisional authority dealing with this ques tion were recently set forth at length in Ameron Automo tive Centers, 265 NLRB 511 (1982) and need not be reit erated here so soon afterward The long and short of it is that as here applicable problems of the nature here pre sented cannot be simplistically resolved by mechanical resort to catchwords or phrases such as the supposed ab solute inviolability of rights of private property -rea sonable invasion of which since time out of mind has been sanctioned as subject to supervening constitutional and statutory provisions as well as to regulatory local and common law controls and requirements including conformation of its use to accommodate rights of others, or to social policy as legislatively declared administered and judicially interpreted We are currently instructed by our highest Court that in resolution of such questions specifically in conflict resolution arising from statutory rights under the Act-not to speak of constitutional guarantees such as First Amendment freedom of expres sion on the one hand and on the other hand, rights of private property (as to which there is a huge spectrum of varieties e g the nome and castle with a shopping center such as here)-a reasoned balancing is necessary See Hudgens v NLRB 424 U S 507 (1976) in effect re nouncing the rationale in Food Employees Local 590 v Logan Valley Plaza 391 U S 308 (1968) and reinstating that in NLRB v Babcock & Wilcox Co 351 US 105 (1956) Respondents store is one of about 15 conjoined stores situated in a close in suburban area with unrestricted access directly off a heavily trafficked highway and with unrestricted public parking facilities as well as a public bus stop in front of the stores shared by all store keepers and their customers as is a common sidewalk running in front of all the stores There is neither evi dence nor contention that any posted or otherwise pub licly announced restriction or limitation has been placed on public access to this area its stores its inner vehicular area or its sidewalks by the owner of the property or re version or by any of the lessees Respondent nevertheless contends that it is through summary policy action privi leged to restrict the peaceful exercise of First Amend ment and/or statutory rights in this area specifically on that portion of the shared sidewalk abutting on its store as well as in the shared parking areas Respondents sub lease as well as its lessor s underlying lease expressly re serve control and maintenance of the sidewalk and park ing areas to the lessor or owner of the reversion Be cause the sidewalk and parking areas are neither leased nor controlled by respondent but are on the contrary, under the applicable leases expressly reserved to the lessor or owner of the reversion 12 Respondents stand ing to exercise the absolute dominion it here asserts in defense of its actions, is questionable Further throwing into question the allegedly wholly private character of the location in question as enuring to Respondents own dominion or control is the fact that there is a public bus stop in the parking area immediately in front of Re spondent s store Thus these stores are like urban or sub urban stores that provide off roadway or off public high way customer parking in front of (or sometimes behind or to the side of) the clump of stores To sanction abso lute or unfettered prohibition of orderly exercise of First Amendment rights of freedom of communication (or of statutory rights under the Act) in such a publicly shared location as Respondent insists it has the unbridled power to exercise, would appear to constitute a major intrusion into that important constitutionally (as well as statutori ly) guaranteed right Respondents assertion of such a broad private power must therefore be viewed with cir cumspection in a society dedicated to such freedoms as ours Beyond that attempt to create an Act free en clave 13 cordoning off outside union organizers recently eschewed by even the dissent in Ameron Automotive Cen ters supra 14 regarding nonemployee union organizational efforts (unlike the purely informational picketing here) Respondent seeks to create a thin Maginot Line of its own making to foreclose constitutionally and statutorily guaranteed nonunion organizational freedom of commu nication to the public Any retail store that as here is architecturally set back from a roadway peripheral sidewalk (if any) or building line, whether described as located in or on a so called mall or shopping center or otherwise within as well as outside of city limits is similarly on private property This is not to say, however that the abutting common sidewalk-particularly where as here shared by adjoining storekeepers-is not available for lawful uses and purposes15 by the general public espe cially where as here again access to the sidewalk (and shared parking) has in no way been limited by the holder of the reversion having ownership and control of the shared sidewalk and other common portions Indeed by seeking to interdict or limit use of the shared sidewalk 12 Neither Respondents immediate lessor (A&P) nor the basic lessor or owner of the reversion nor any other storekeeper or user of the shared sidewalk or parking areas has at any time objected to the picketing here 11 Ameron Automotive Centers supra at 527 fn 50 14 Id at 518 15 Orderly area standards picketing such as here designed for exam pie to inform the public of the picketed merchant s failure to pay his em ployees the living wage prevalent in the area has long been recognized as a constitutionally protected exercise of free communication under the First Amendment See infra for further discussion of this point POLLY DRUMMOND THRIFTWAY an individual lessee storekeeper such as Respondent may be exercising unwarranted dominion or police power over property that is not his and thereby interfering with property rights of or imposing his own ideological pref erences on other storekeepers as well as the reversioner Unlike Ameron Automotive Centers supra and numer ous other cases, the instant case involves area stand ards informational, and not union organizational picket ing There is no proof or contention here that the picket ing in question had an organizational purpose such as to come within the interdict of the Act, nor has Respondent at any time so asserted or sought the interposition of the Board or any court to stop or prevent it As is well known, unlike organizational picketing which is beamed at employees to recruit them to affiliate with a union area standards picketing is purposed to inform the gen eral public that the picketed merchant is engaged in a labor policy that will undermine the standard of living and economic stability of the area Area standards pick eting is designed to inform the general public that the picketed merchant s substandard wages and other labor practices toward its employees will depress not only the wages of other employees in the area, but also thereby have an unfavorable impact on the standard of living of customers (many if not most, of them employ ees themselves), and even an unfavorable effect on the competitive position of other merchants thereby eco nomically disadvantaged because of the lower prices at which the picketed tradesman is able to vend his product because of his lower labor costs Thus area standards picketing may be viewed as imbued with somewhat of a public interest character, in possible contrast to purely organizational picketing Indeed true area standards picketing as here, may be regarded as mere expression of the First Amendment right of freedom to commune cate (even though it also inheres statutorily in Section 7 and elsewhere, of the Act 16 much as verbal or visual communication among prospective customers or other users of a sidewalk or other open and unrestricted areas outside a store or stores Thus, the right to engage in area standards picketing may be regarded as more free from constraints17 in the described context than the right to engage in organiza tional picketing since unlike organizational picketing which derives solely from or is limited by a statutory basis (the Act) area standards picketing also derives from a constitutional basis-namely the First Amend ment We should therefore be slow except for compel ling necessity to impose shackles on its peaceful exer cise 18 18 Cf Hod Carriers Local 41 (Calumet Contractors Assn) 133 NLRB 512 (1961) 8(b)(4)(C) context) and Houston Building & Trades Council (Claude Everett Construction) 136 NLRB 321 (1962) 8(b)(7)(C) context) Giant Food Markets 241 NLRB 727 (1979) enf denied on other grounds 633 F 2d 18 (6th Cir 1980) 17 This is not to suggest that area standards picketing is not subject to the usual constraints of orderliness as properly enforced by local and other authorities 18 In this connection compare Giant Food Markets 241 NLRB 727- 729 fn 11 (1979) enf denied on other grounds 633 F 2d 18 (6th Cir 1980) with the brief footnote obiter in the nature of a passing query raised but unexplained in a differing context (preemption) in Sears Roe buck & Co v Carpenters San Diego County District Council 436 U S 180 337 It flows from what has been said that the alternative modes of communication inquiry sometimes or usually required in assesing the propriety of permitting organiza tional picketing on property clearly private in charac ter,19 may be far less in the case of area standards pick eting in view of the immeasurably larger amophous and practically unidentifiable population involved-i e customers, business and social invitees, permittees, tradesmen and visitors generally of a particular store in a cluster of stores and other establishments in contrast to the limited and usually readily identifiable or ascertain able class of employees of a store sought to be organized Furthermore, members of the public desiring to com municate such information to each other, whether on shopping center sidewalks or elsewhere-verbally, or through button wearing, lettered sweatshirts printed bandouts or even sandwich signs-are not expected to go to the considerable trouble and expense, as well as the impracticality, of restricting expression of their view point to formal newspaper television, and radio advertis ing of doubtful efficacy and usually necessarily to be pre ceded by a further costly preliminary survey to attempt to arrive at an unscientific estimate of whether the par ticular advertising medium (much less the advertisement) will reach an adequate proportion of those assumed to patronize the store in question Is it constitutional, proper or fair to single out unions or groups of employ ees alone as an unequally protected and disfavored class on whom uniquely to impose such costly and impractica ble burdens on the constitutional or balanced right freely to communicate peacefully in public places920 We may start with the proposition that there is no general right constitutional or otherwise to enter with out permission, the private property of another for any purpose including the purpose of exercising any consti tutional right, including the First Amendment right to communicate But in the instant case we are confronted at the threshold with the fact that the area was hardly private it being publicly trafficked, open, and unre stricted to all, indeed the power to eject or restrict com munication in the places here attempted to be exercised after access was freely gained has at no time been assert ed by any person owning or entitled to exercise control over those areas Moreover, in the instant context what specifically is the private property that requires or merits overriding protection 9 Respondent neither owns nor is entitled to exercise control over the sidewalk or parking areas and those who do voice no opposition to the picketing It may more broadly and challengingly be queried whether an aggregate of storekeepers may gain exemption from what would otherwise be constitutionally (as well as statutorily) guaranteed rights of communication of per sons on the abutting sidewalks and shared parking areas, at 206 fn 42 (1978) See also in this connection Giant Food Markets v NLRB 633 F 2d 18 23-24 fn 13 (6th Cir 1980) 18 Cf Ameron Automotive Centers supra at 525-526 fn 36 and cases cited 20 In Ameron Automotive Centers supra the full Board including the dissenting Members (id at fn 33) regarded such burdens as impracticable even in an outside union organizing campaign in a shopping center See also Giant Food Markets v NLRB 633 F 2d 18 at 24-25 (6th Cir 1980) 338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD through the simple expedient of dubbing themselves a shopping center -within or outside a city 21 In what ways does Respondents store differ from one of a simi lar cluster of stores located within a municipality and ar chitecturally set back a few feet off the abutting road or peripheral sidewalk? Could all such architectual contri vances including access sidewalks used in common by all stores, gain exemption from communicative freedoms through the simple expedient of dubbing themselves shopping centers? Because a storekeepers enclosed restaurant within a shopping center is regarded as public and therefore open to freedom of communica tion by its users-even outside union organizers '22 why are not its public sidewalks and restricted parking areas to be similarly regarded? To label the area standards advocates here as criminal trespassers intruders, or loiterers, as distinguished from all other members of the public permitted unrestricted access to and free com munication with each other on the common sidewalk and parking area, is to beg the question and enthrone rubric over logic Taking the balanced view required under Babcock & Wilcox, supra it is clear and I find, that there was no more inconvenience to Respondent, or interference with its business, by the orderly area standards picketing than there would be if Respondents store were located on a city street, indeed perhaps less-i e , minimal Respond ent is, however-precisely as it would be if its store were located on a city street-understandably unhappy over the picketing of its store, regardless of location But Respondent cannot for that reason privately proscribe the exercise of a constitutional or competing right cannot turn on the unhappiness of a person affected by its exer cise It is accordingly determined that by its descibed ac tions under the circumstances found, in ousting and pre eluding the Charging Party s area standards picketers from peaceful and orderly use of the common sidewalk and parking area in front of its retail store in the Polly Drummond Shopping Center on the occasions described (and by its insistence on possession of the power and in tention to repeat and continue such action) Respondent has (and continues to) violate Section 8(a)(1) of the Act as alleged in the complaint CONCLUSIONS OF LAW 1 Jurisdiction is properly asserted in this proceeding 2 Through its actions as set forth and found in section III supra, Respondent has interfered with restrained, and coerced employees in the exercise of their rights under Section 7 of the Act, in violation of Section 8(a)(l) of the Act and continues to do so 3 The unfair labor practices have affected affect and unless permanently restrained and enjoined will continue to affect commerce within the meaning of Section 2(6) and (7) of the Act 23 REMEDY Having been found to have violated the Act as de scribed, Respondent should be required to cease and desist from those or similar violations, to permit access by the Union to the described location for peaceful and orderly area standards informational picketing, and to post the usual informational Board notice conventionally required in such cases On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed24 ORDER The Respondent, Polly Drummond Thriftway Inc, New Castle County Delaware its officers agents, sue cessors and assigns shall 1 Cease and desist from (a) Barring, ousting, or removing, ordering or threat enmg the removal, or invoking or threatening to invoke police or other aid or assistance to procure the removal from any public sidewalk or parking area used by the public in or in common by lessees or tenants of Polly Drummond Shopping Center at or near Linden Hill (New Linden Hill) and Polly Drummond Roads in or near Newark New Castle County Delaware, of any person or persons including Local 1349 United Food and Commercial workers International Union and its members agents, and representatives peacefully and in an orderly fashion picketing or otherwise communicat ing, or attempting to communicate in such areas and lo cations with other persons and the general public con cerning the alleged failure of Polly Drummond Thriftway, Inc to observe or maintain wage levels and other terms and conditions of employment prevalent in the area (b) Demanding that such picketing at such locations cease or employing or summoning State local or other police to enforce such demand (c) In any like or related manner interfering with re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Permit Local 1349 United Food and Commercial Workers International Union, and its members, agents, and representatives, peacefully and in an orderly fashion to picket concerning Respondents alleged failure to ob serve or maintain prevailing wages or other terms and conditions of employment or otherwise lawfully to com municate with other persons and the general public on the public sidewalks and parking areas used by the public 21 In Ameron Automotive Centers supra all members of the Board (in eluding Members otherwise dissenting-see slip op at fn 17) regarded as violative of the Act a shopping center storekeepers proscription of union organizing by nonemployees of the storekeepers nonrestaurant employees in the storekeepers restaurant within the shopping center 22 Id at fn 21 23 The parties proposed findings and conclusions are allowed only to the extent consistent with the findings and conclusions here 24 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all put poses POLLY DRUMMOND THRIFTWAY in or in common by lessees or tenants of the Polly Drummond Shopping Center, including that portion of the sidewalk in front of Respondents supermarket store so long as entrance to or egress therefrom is not blocked (b) Post at its supermarket store in the aforesaid shop ping center copies of the attached notice marked Ap pendix 25 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondents 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 cus tomarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de faced or covered by any other material (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 25 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 339 WE WILL NOT bar oust, remove or order or threaten to bar, oust, or remove or obtain police or other aid to do so any member agent, or representative of Local 1349 United Food and Commercial workers Internation al Union or any other person, from any public sidewalk or parking area, including those in front of our store in the Polly Drummond Shopping Center, where any such persons peacefully there picket or otherwise commune cate lawfully to inform the public concerning our wage and employment benefit levels and our other labor poli cies and practices WE WILL NOT demand that such picketing cease nor will we employ or summon the police to enforce any such demand WE WILL NOT in any like or related manner interfere with restrain or coerce our employees in the exercise of rights guaranteed them in Section 7 of the Act WE WILL recognize the right of members, agents, and representatives of Local 1349, United Food and Com mercial Workers International Union, as well as others to picket peacefully and in an orderly fashion on those sidewalks, and to lawfully inform the general public about our wage and employment benefit levels and other labor policies and practices so long as our store en trances and exits are not blocked by such picketers POLLY DRUMMOND THRIFTWAY, INC The National Labor Relations Board has found that we violated the National Labor Relations Act and has or dered us to post and abide by this notice