Ramey Supermarkets, Don Newton'S Supermarket, Inc

MOUNTAIN COUNTRY FOOD STORE Mountain Country Food Store, Inc , Roswil, Inc , d/b/a Ramey Supermarkets , Don Newton's Su- permarket, Inc and Teamsters Local Union No 245 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO Cases 17-CA- 10595, 17-CA-10599, and 17-CA-10600 February 10, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN, CRACRAFT, AND HIGGINS On November 5, 1982, Administrative Law Judge Harold A Kennedy issued the attached deci- sion The Respondents filed exceptions and a sup- porting brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions as explained below, and to adopt the recommended Order as modified The Union represented approximately 12 em- ployees of a Coca Cola bottling plant in Aurora, Missouri, and began an economic strike about Sep- tember 1, 1981 In support of its strike the Union picketed the Employer at its plant location, sent out roving pickets following the Employer's trucks on their deliveries, and also engaged in consumer picketing and handbilling at various locations The complaint alleges that the Respondents, at four dif- ferent locations, violated Section 8(a)(1) of the Act by telling individuals engaged in handbillmg that they could not handbill on the premises and, at two locations (Lakeview and Respondent Ramey's Aurora store) by telling handbillers they would be arrested if they failed to leave the premises The judge found that Respondent Ramey Super- markets at three locations in Aurora and Monett, Missouri, and Respondent Mountain Country Food Store at its Lakeview, Missouri location violated the Act as alleged i Applying the balancing test set forth in NLRB v Babcock & Wilcox Co, 351 U S 105 (1956), the judge found that the Union's right to handbill near the area where customers entered and exited the stores outweighed the Respondent's private property rights, and therefore the hand billers were not required to move to public proper- ty as they were asked to do We have decided to ' The judge dismissed allegations regarding the third Respondent Don Newton s Supermarket As no exceptions were filed to that dismissal Newton s is not included in our discussion mfrs 967 adopt the judge's conclusions for the reasons set out below In Jean Country, 291 NLRB 11 (1988), the Board recently reexamined and clarified its analytical ap- proach in access cases The Board noted there that in all access cases its essential concern will be the degree of impairment of the Section 7 right if access should be denied, as it balances against the degree of impairment of the pnvate property right if access should be granted The Board emphasized that consideration of the availability of reasonably effective alternative means of communication is es- pecially significant in this balancing process The Board in Jean Country set forth a number of factors relevant to assessing the weight of property rights, Section 7 rights, and alternative means of commu- nication Noting that there is a certain interdepend- ence among these factors, the Board stated, "for example, whether a particular situs is a vast ex- panse or cramped quarters may be relevant both to defining the strength of the property right and to deciding the reasonableness of conducting the Sec- tion 7 activity on its perimeter as an alternative means of communication "2 Accordingly, we turn to consideration of the instant case in light of Jean Country The facts are set forth in detail in the judge's de- cision Briefly, at the time of the events at issue, the Union was the certified bargaining representa- tive of production and maintenance employees, in cluding route salesmen, employed by Coca Cola Bottling Company of Aurora, Missouri 3 The Union began an economic strike about September 1, 1981 In support of its strike, the Union picketed the Coca-Cola plant, had roving pickets follow the Employer's trucks on deliveries to various retail outlets, and also utilized consumer pickets and handbillers to publicize its dispute Only the hand- billing at certain of the Respondents' locations is at issue in this proceeding The handbilling was done by striking employees, as well as others employed by the Union The individuals engaged in handbill ing were concededly on sidewalks and parking lots owned or controlled by the Respondents The handbills announced that members of the Union were on strike against their employer "in an at- tempt to gain a fair and just contract," that the Union "urgently" requested that the reader "NOT BUY products distributed by COCA-COLA BOTTLING COMPANY of Aurora," that the Union's dispute was only with the Employer, and 2 Jean Country supra ' The Respondents exceptions contend inter aha that this proceeding should be dismissed as moot because the Union lost a decertification elec tion at Aurora Coca Cola a month before the hearing in this case We find no merit in this exception 292 NLRB No 100 968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that the Union was not asking individuals to stop patronizing the targeted establishment At each lo- cation, the Respondents told the handbillers they would have to leave the premises, and at two loca tions also told them they would be arrested if they did not do so Respondent Mountain Country Food Store is sit- uated in a relatively small shopping center on the northeast corner of Routes 13 and 76 in Lakeview, Missouri The site is also occupied by a bank, a res- taurant, and approximately nine smaller shops The Respondent is located at the north end of a large building, with three shops and the bank at the other end A somewhat smaller building housing the restaurant and other shops sits to the west of the long building, separated by a sidewalk Re spondent Ramey's Aurora store is located on the south side of College Street, bound by an alley to the west, and Jefferson Street to the east The Re- spondent's store occupies approximately half the frontage, beginning at the alley, with a cleaners and a variety store between the Respondent's store and Jefferson Street A parking area between the stores and the public sidewalk along College Street is entered from the alley, with a lane down the middle to the exit on Jefferson Street, and diagonal parking on either side The two Ramey's stores in Monett each occupy a separate building with its own separate parking area The Ramey's Cleveland Avenue store site in Monett is similar to that of the Aurora store discussed above, except that it is the sole occupant The other Ramey's store in Monett is situated between Main Street to the south and Broadway on the north Its parking lot has en- trances and exits to both of those streets, and ex- tends from the store west to Euclid Street A 3- foot wide sidewalk separates the store from the parking lot Another sidewalk extends from the Broadway driveways south through the parking lot for most of the length of the store It is stipulated that the Respondents hold a lease- hold interest in the stores' premises, sidewalks, and parking lots involved, including the right to con- trol the parking lots, except (concerning Lakeview and Ramey's Aurora store) to the extent that it might conflict with any of the other businesses' right to have its customers use the parking lots At the Ramey's Aurora location, the Respondent maintains the parking lot also used by the cleaners and variety store Further, it is undisputed that each of the Respondents' stores involved here sold products of Aurora Coca-Cola Bottling, and that these products composed approximately 2 to 4 per- cent of each stores' inventory It is clear, as a threshold matter in the accommo- dation analysis, that the Respondents' conduct at each of the four locations was based on a legiti mate property interest because the Respondents have leasehold interests in the stores , sidewalks, and parking lots involved here The two Ramey's stores in Monett are freestanding facilities with their own parking lots for the exclusive use of the stores' patrons Similarly, at the Ramey's Aurora store, the Respondent maintains the parking lot and controls its use, except to the extent that it might conflict with the right of the other two establish ments on the site to have their customers use the lot The situation is the same at Respondent Moun tarn Country Food Store's market in Lakeview, al- though the parking facilities at that small shopping center are used by the customers of several more stores, as well as by patrons of a bank and restau- rant There is no evidence that the Respondents permitted use of their property by any outside group, either for charitable or commercial pur- poses Although there are differences in the rela- tive strengths of the property interests between the freestanding stores and the stores that share their sites with other businesses , we conclude that the Respondents' property rights at issue at each of the locations is a relatively substantial one In this regard, however, we note that the judge found that the premises of all four stores , including the adja cent sidewalks and parking lots, are "essentially open to the public " With respect to the Union 's activities, we agree with the judge that the Union 's handbilling, which is in support of its primary economic dispute with the bottling company , is clearly protected by Sec- tion 7 The type of "struck product" consumer handbilling engaged in by the Union here was rec- ognized as being protected activity by the Supreme Court in its 1964 Tree Fruits decision (NLRB v Fruit Packers Local 760, 377 U S 58) Accordingly, we find that the right asserted here is a relatively strong Section 7 right Further , as the judge found, there is no evidence that the handbillers interfered significantly with ingress or egress at any of the four stores , and the number of handbillers at each store was reasonable The handbilling was peaceful, no employees or customers were harassed, and de liveries were not obstructed Thus , the manne in which the Union engaged in its conduct does not diminish the strength of the Section 7 right Under the circumstances, we find that the Union's Section 7 right involved here is certainly worthy of protec- tion against substantial impairment Regarding the Union's alternative means of com municating its message to its intended audience, the customers of the four stores , we agree with the judge that the only possible reasonable alternative means is handbilling on the public property near MOUNTAIN COUNTRY FOOD STORE the entrances and exits to the stores' parking lots The Union was not seeking a boycott of all Coca- Cola products Rather, its message was directed at only those bottled by the Aurora, Missouri plant Because the identity of the bottling company is not readily identifiable on a store shelf, and the area served by local newspapers, radio and television stations included areas served by other Coca-Cola bottlers with whom the Union had no dispute, the use of mass media might have enmeshed those neu- tral bottlers in the Union's boycott Accordingly, we agree with the judge's finding that a mass media advertising campaign through the use of newspaper, radio, and television advertising is not a feasible alternative to direct contact with the stores' customers We further find that, in view of the detailed nature of the Union 's message in which it sought to persuade potential customers not to purchase Coca-Cola products bottled by the Em- ployer, the information could not be fully con- tained on a picket sign There is persuasive evi- dence, as found by the judge, that at each of the four locations, handbilling from public property at the parking lot entrances was ineffective because very few automobiles stopped to receive handbills on entering the lots Thus, there was little opportu- nity for any communication between the hand- billers and potential customers of the stores In ad- dition, the record supports the judge's findings that handbilling on the public property resulted in traf- fic congestion and presented safety hazards to both handbillers and occupants of the automobiles We conclude that, in the circumstances here, when the Union's handbilling targets only a particular prod- uct and does not seek a total cessation of business with the stores, requiring the handbillers to confine themselves to the public property on the perimeter of the premises would unduly diminish the Union's right to communicate its message Accommodating the private property and Sec- tion 7 rights pursuant to our analysis in Jean Coun- try, we find that the Respondents' property inter- ests would suffer some impairment by granting access to the Union Nevertheless, we conclude that the impairment would not be substantial, in light of the unobtrusive manner in which the Union carried out is handbilling and the fact that the Respondents essentially have opened up their premises to the public By contrast, in the absence of reasonable alternative means of communication, the Union's Section 7 right would be "severely im- paired-substantially `destroyed' within the mean- ing of Babcock & Wilcox"4 without entry onto the 4 Jean Country supra 969 Respondents' property Thus, we find that the Sec- tion 7 right outweighed the Respondents' right to restrict access to their private property in this par ticular context, and that the Union was entitled to engage in the handbilling that it conducted at the entrances and exits of the Respondents' stores Ac- cordingly, we affirm the judge's conclusion that the Respondents' refusal to permit the Union's handbillmg at the respective facilities involved vio- lated Section 8(a)(1) of the Act ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondents, Mountain Country Food Store, Inc, Lakeview, Missouri, and Roswil, Inc, d/b/a Ramey Supermarkets, Aurora and Monett, Missou ri, their officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied 1 Substitute the following for paragraph 1(a) "(a) Prohibiting representatives of the Union from distributing handbills as part of protected concerted activity in informing the public of its dis- pute with the primary employer, by directing them to leave the Respondents' premises " 2 Substitute the attached notices for those of the administrative law judge APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities WE WILL NOT prohibit representatives of Team- sters Local Union No 245 affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL- CIO from distributing handbills as part of protect ed concerted activity in informing the public of its 970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD dispute with the primary employer, by directing them to leave our premises 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 MOUNTAIN COUNTRY FOOD STORE, INC APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities WE WILL NOT prohibit representatives of Team sters Local Union No 245 affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, War ehousemen and Helpers of America, AFL-CIO from distributing handbills as part of protected concerted activity in informing the public of its dis- pute with the primary employer, by directing them to leave our premises 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 ROSWIL, INC, D/B/A RAMEY SUPER- MARKETS Donald B Zavelo Esq, for the General Counsel Donald W Jones Esq and Calvin R Halden Esq, of Springfield, Missouri, for the Respondent Employers Jim Kabell, Assistant Business Representative, of Spring field, Missouri, for the Charging Party Union DECISION HAROLD A KENNEDY Administrative Law Judge This case involves the legality of the handbilling of five Southwest Missouri retail grocery stores by Teamsters Local Union No 245 affiliated with International Broth erhood of Teamsters, Chaffeurs, Warehousemen and Helpers of America, AFL-CIO (the Union), the certified collective bargaining representative of the production maintenance employees of Coca Cola Bottling Company of Aurora, Missouri (Coca Cola) i The Respondent employers named in the consolidated complaint, issued by the Regional Director for Region 17 of the National Labor Relations Board on October 15 1981, at the behest of the Charging Party Union, are La keview Mountain Country Food Store, Inc (Lakeview), Roswil, Inc, d/b/a Ramey Supermarkets (Ramey), and Don Newton's Supermarket Inc (Newton's) 2 Each of the three employers is a Missouri corporation, and each is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act Each of the Employers admits grossing in excess of $500,000 annually and annually purchasing goods and services valued in excess of $50,000 directly from sources located outside the State of Missouri Three of the stores involved are Ramey outlets One is located in Aurora, Missouri (Ramey s Aurora store), one is located at Ninth and Cleveland in Monett, Missouri (Ramey s Cleveland store), and one is located on Broad way in Monett, Missouri (Ramey s Broadway store) 3 The Lakeview store is located at Highways 13 and 76 in Lakeview, Missouri, and Newton s store is located on Highway 13 in Crane, Missouri The following persons are, or were at all times rele vant, admittedly agents and/or supervisors' acting on behalf of the respective below named Respondents David Stockton, Mgr -Ramey's Aurora store David Clark Mgr -Ramey's Monett Cleveland store Bill Hilbert, Asst Mgr -Ramey s Monett Broad way store Jim Maze (misspelled Mayl' in the complaint), Owner of Lakeview Don Newton Owner of Newton 54 ' G C Exh 2 shows the Union was certified on April 18 1980 as the collective bargaining representative of a unit of Aurora Coca Cola Hot ding Co employees described as follows All full time and regular part time production and maintenance em ployees including route salesmen cooler sales and maintenance per sonnel premix and post mix sales personnel and plant and equipment maintenance employees employed by the Employer at its facility lo cated at Aurora Missouri excluding all office clerical employees pro fessional employees guards and supervisors as defined in the Act 2 All dates refer to 1981 unless otherwise stated The Union filed a charge in Case 17-CA-10595 on September 14 against Lakeview whose correct name is Mountain Country Food Store Inc An amended charge was filed in the same matter againt Lakeview on the same day Also on September 14 the Union filed charges againt Ramey in Case 17-CA- 10599 and against Newton s in Case 17-CA-10600 The case was heard in Springfield Missouri on June 22 1982 Re spondents have requested certain corrections in the transcript Such cor reckons are ordered as no objection to such request has been received 8 There are Ramey stores at other locations but they are not involved in the proceeding * Newton testified that following a heart attack in July he sold the Newton store to a John Brenstetter who now operates a store at the same location under the name of Nu Way Foods Newton said he and his wife continue to own the land where the store is located MOUNTAIN COUNTRY FOOD STORE According to paragraph 5 of the complaint, the Union has had an economic labor dispute with Coca Cola since on or about September 1 Allegedly, according to para graph 6, the Union handbilled Respondents' facilities with an object of truthfully advising the public , includ ing consumers, that a product or products produced by Coca Cola were being distributed by the Respondents at their respective facilities " on the following dates Ramey s Aurora store September 1, 4 or 5, and 8 Ramey's Monett Cleveland store September 6 Ramey's Monett Broadway store September 8 Newton's store September 7 and 8 Lakeview's store September 10 and 11 According to paragraphs 7(a) and 8 of the complaint, Respondents interfered with, restrained, and coerced "employees" in the exercise of rights guaranteed in Sec tion 7 contrary to Section 8(a)(1) of the Act by telling the handbillers that they could not handbill on the prem ises and by directing them to leave the premises as fol lows (i) Ramey's Aurora store by Manager David Stockton on or about September 1, 4 or 5, and 8 (ii) Ramey's Monett Broadway store by Assistant Manager Bill Hilbert on or about September 8 (iii) Ramey's Monett Cleveland store by Manager David Clark on or about September 6 (iv) Newton's store by Owner Don Newton on or about September 7 and 8 (v) Lakeview store by Owner Jim Maze on or about September 10 and 11 Paragraphs 7(b) and 8 of the complaint also allege that two of the Respondents violated Section 8(a)(1) by threatening handbillers with arrest if they failed to dis continue the handbilling and leave the premises, as fol lows (i) Ramey s Aurora store by Manager David Stockton on or about September 8 (ii) Lakeview store by Owner Jim Maze on or about September 10 and 11 During the trial the parties agreed that Respondents did direct union handbillers to stop handbilling and leave the premises of the five stores in question on the dates specified in paragraph 7(a) of the complaint also, that paragraph 7(b) of the complaint should be amended so as to allege that officials of the Ramey's Aurora store and the Lakeview store, at the times and places alleged told the handbillers that they would be arrested (rather than threatened them with arrest ) if they continued handbill ing on the premises of the two stores and, as so amend ed, such allegations are to be considered admitted It was also stipulated that Aurora Coca Cola products were sold at the five stores in question and that the Union handbilled (using the language set forth on G C Exh 3 later identified and received) such stores on or about the dates in 1981 indicated in Paragraph 6 of the coin plaint, as amended at this hearing " The record establishes that the Union had an economic labor dispute with Coca Cola after September 1 and that Coca Cola products, at all times relevant represented 971 only a small precentage of the total sales of each of the five stores The persons who handed out the handbills were ad mittedly on sidewalks, parking lots, or other property owned or controlled by one of the Respondents A summary of the testimony follows Jim Kabell identified himself as vice president and as sistant business agent of Teamsters Local 245 He said he had been employed by the Union for a little over 3 years Kabell testified that approximately 12 Aurora Coca Cola employees began an economic strike against that firm on or about September 1 Said Kabell We engaged in picketing the facility there at the plant We also engaged in what I will term roving pickets that followed the trucks on their deliveries to various retail outlets around the immediate area that they served, and also consumer handbilling at various retail outlets in the area that they served On cross examination Kabell testified that Coca Cola Bottling Company of Aurora served a territory he de scribed as follows They went west, past Monett a little ways I don t know but somewhere there s a line splitting Monett and Pierce City, south as far as Cassville, Eagle ville, to the southwest Seligman and Exeter, to the southeast they split somewhere between Silver Dollar City and Branson I in not sure where the trade territory split is there On the east, it's split between Billings and Republic, somewhere in the vicinity In the north, they split at what is, well, close to old Highway 66 It goes as far north as Miller and Haultown [sic] The Springfield Coca Cola distributor picks it up in Greenfield So some where on Highway 39, between Miller and Green field, they split the territory Q So how many counties would it cover? A Parts of Lawrence County, most if not all of Berrey County [sic], part of Stone County, a corner of Christian County, I don t know if they ever get into the edge of Greene County but I don 't believe they do Probably parts of four counties That s a guess, but four or five counties Kabell agreed that newspapers and radio stations served the territory of the Aurora bottler and that he made no effort to utilize such media to advertise his Union's dispute with such firm He indicated later on re direct that Coca Cola products-Coca Cola Sprite, and Mr Pibb or Tab-of different bottlers were undistingui shable and that radio and newspaper advertising could be troublesome Said Kabell We use consumer handbilling at the store so as not [to] embroil some facility, some company, that we had no problem with For example , if we had used the newspapers and the radios, we would have said, please do not buy coca cola we have a dispute with Aurora Coca Cola we have to believe that the con 972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD suming public might not have picked up all the message all the time and they, in turn might have caused some problems with the Springfield Coca Cola Plant or the Baldwin or the Lebanon where these newspapers and radio advertisements would go out, whom we had no dispute with And if you advertise a brand name, that s what people are going to remember And that s why we restricted it to the trade territory in which this com pany distributed products 5 Kabell identified a copy of the handbill distributed at the five stores in question and sketches or maps of the areas where the five stores were located The handbill (G C Exh 3), reads as follows PLEASE DO NOT BUY COKEI TEAMSTERS Local Union No 245 urgently re quests that you DO NOT BUY the following prod ucts distributed by COCA COLA BOTTLING COMPANY of Aurora COCA COLA SPRITE MR PIBB-TABB Members of Teamsters Local No 245 are currently on strike against Coca Cola Bottling Company of Aurora in an attempt to gain a fair and just contract covering their wages and working conditions We believe that Coca Cola Bottling Company of Aurora has not bargained in good faith and is being unfair to its employees PLEASE HELP US IN OUR STRUGGLE TO WIN DECENT WAGES AND WORKING CONDITIONS Our dispute is with COCA COLA BOTTLING COMPANY OF AURORA and we are not asking you to stop pa tronizing this establishment TEAMSTERS Local No 245 Kabell explained that the roving pickets that the Union used not in issue here, carried a similar message Asked if the Union could not have simply stated in its signs or notices, Please Don t Buy Coke, Kabell replied that he did not think such would be permissible under the law 6 5 Kabell acknowledged on cross-examination that he could have used newspaper advertisements which just said don t coca cola sprite tab in stores located in lower Monett Crane but he thought it would cause problems in areas where the Union had no dispute Said Kabell I still fell if you re putting out the message do not buy these prod ucts that people are going to look for brand names first and the to cation second We would have been doing an injustice to the coca cola plants like I say in Springfield Lebanon Baldwin West Plains e Kabell indicated that the Union had done little handbilling or picket ing after November or December 1981 He said the Union did handbill Consumers and Walmart Stores in Monett and Aurora in 1982 The Union had handbilled certain restaurants soda fountains and drug stores as well as various stores (e g MFA 7 11) in southwest Missouri We also extended our handbiliing into Northeast Oklahoma that was serv iced another facility that was related with Aurora Coca Cola he stated Kabell stated that the handbilling was done by strik ing employees of Aurora Coca Cola and by others that the Union employed to distribute the hand bills " Kabell identified a typed list of Instructions for Handbilling (G C Exh 4) which he said he supplied to the Union s handbillers Kabell testified concerning conversations he had with persons managing the two Ramey stores in Monett and the Ramey store in Aurora Kabell never had occasion to speak with Don Newton Kabell said he had spoken with Maze over the telephone once or twice but he had never met with him in person before the hearing The General Counsel's Exhibit 5 is the sketch that Kabell drew of the Ramey Aurora store and its immedi ate area The sketch shows that the store is situated south of College Street, a two way east west thorough fare with a parking lot, bounded by sidewalks in be tween The public may enter and leave the store only through a double door located in a recessed area or alcove near the northeast corner of the store Frank s Cleaners occupies the space immediately east of the Ramey Aurora store, and a Modern Variety store is si tutated just east of Frank s On the west side of the store there is an alley that is used by automobiles entering the parking lot (The cars exit out of the parking lot to the east onto Jefferson a north south street) A church is lo cated west of the alley and Aurora s city hall is directly opposite the church to the north (making the church di agonally opposite the Ramey s store to the northwest) Kabell explained the use of the parking lot as follows The parking lot is used by the general consuming public people that buy groceries from Ramey s people that use the services of Frank s Cleaners, and also people that are customers of Modern Van ety Regarding Ramey s right to use or control use of the parking lot, it was stipulated Roswil, Inc, d/b/a Ramey Supermarkets holds a leasehold interest in the property that is shown as the Ramey Store depicted in General Counsels Ex hibit 5 And under that lease it has a right to con trol the use of the parking lot except to the extent that it might conflict with any rights of Frank s Cleaners or Modern Variety who also have a right to have customers use that parking lot And that Ramey s does maintain the parking lot It was agreed among the parties that Frank s Cleaners and Modern Variety also contribute to the maintenance of the parking lot Kabell stated he stationed handbillers at the edge of the alcove off to the side that's just opposite the door way He said handbillers were not stationed at the al leyway entrance to the parking lot (1) because the Union did not want to involve customers of Frank s Cleaners and Modern Variety as such businesses did not sell Coca Cola products, (2) because the Union did not want to interfere with the traffic flow and (3) because handbill ing is always more effective when you can meet the gen MOUNTAIN COUNTRY FOOD STORE 973 eral public face to face than it is when you do it at the street Kabell stated that he spoke with Stockton, manager of the Ramey Aurora store on two occasions on or about September 1 and again around September 7 Kabell said he first entered the store around 7 or 7 30 a in around September 1 to advise the manager as a matter of cour tesy of what was going on, i e, that the Union was handbilling, and pickets could be accompanying trucks delivering Coca Cola products Stockton, whom Kabell recognized as a person he had previously known said he would be in contact with the Ramey office in nearby Springfield Kabell returned later that morning after learning that two of the union handbillers (Cindy Keltner and Susie Allen, he thought) had been asked to leave the store area Kabell met with Stockton in the store office, and the latter confirmed that the handbillers had been asked to leave Kabell said he had talked with another Ramey official, a Mr Taylor, and a store attorney who had informed him that the handbillers were on private property and had no right to be there Kabell asserted a right to advertise the Union s dispute and discourage the sale of Coca Cola products but ultimately withdrew and left the store On Septemebr 7 Kabell was back at the Aurora Ramey store and observed Stockton approach hand billers Donna Barnhouse and Pam Hall who were standing just inside the alcove' Kabell came up to Stockton and both voiced the positions that each had previously stated to each other Stockton went back into the store, and shortly thereafter a police officer arrived Kabell said that he and Stockton met with the officer with the result that the handbillers moved Said Kabell The police officer told me that it was private property that he was going to have to request us to leave I told him who I was and what we were doing there, that we were a labor organization and we were on strike, and we were only trying to ad vertise our dispute He replied Well this may be more of a civil matter than a criminal matter, but if they want to sign a complaint then if you persist on staying here I d have to arrest you And then at that particular time Stockton said that he would sign a complaint He got in the car with the policeman They left the parking lot I went over and got the girls from the street and we moved to the west edge of the parking lot moved to the entrance way and I sta tioned the girls handbilling there The handbilling that followed, at the entrance of the parking lot near the alley, was ineffective in Kabell's view as few cars would stop Later in the afternoon Kabell found the handbillers sitting in a car and on making an inquiry of them, was told that they had been instructed not to handbill in the alley as it was private property, too After Kabell paid a visit to the police sta tion in the city hall across the street, the handbilling re sumed The General Counsel's Exhibit 6 is Kabell s sketch of the area where the Ramey Monett Broadway store is lo cated The store itself is located in a rectangular building whose north end is separated from Broadway, a very busy street, ' only by a sidewalk There is no other busi ness establishment in the immediate area Main Street is on the south end of the building Euclid Street is on the west side of the store and a large parking lot A T shaped sidewalk runs through much of the parking lot Automobiles may not enter or leave the lot from Euclid but may do both at two points on the north, Broadway side, and at three points on the south, Main Street side The main entrance exit door to the store is on the west side, and another door is located on the south side near the southwest corner It was stipulated that Roswil, Inc, d/b/a Ramey Su permarkets had a leasehold interest in the store premises depicted on GCX 6, which includes the building shown there, and also the sidewalks and parking lot that are shown in that exhibit, all being covered by this lease Kabell said he stationed handbillers on the sidewalk at both doors of the Broadway store He said handbilling on either Broadway or Main Street would have been dangerous to the handbillers would have caused traffic problems and would have been less effective Kabell said he observed ineffective" handbilling at the Ramey s Monett Broadway store on or about Satur day, September 5, and again a couple of days later when he spoke with the store s assistant manager There were he said, for handbillers-Charles Jeff, and Kenneth Gibson and Vaughn Bolling-at the store, and two were stationed at the south (southwest) side door Quoting from Kabell s direct testimony When the handbillers started to handbill, it wasn t but just a few minutes until a fellow came out of the store I walked up to where he was at He was talking to two of the Gibsons Charles and Jeff It turned out the fellow' s name was Bill Hil bert, I believe He was the assistant manager there at that particular Ramey's store He told us that, `You guys can't stay here I've been instructed to not allow you here It s private property I told Mr Hilbert that we were a labor organiza tion that we were only trying to advertise our dis pute He said, You can t be here I said It s my position that I think we re in the right He turned and went back inside the door About a half an hour later a county sheriff's car arrived An officer got out of the vehicle and Kabell engaged him in coversation He told me, You guys have got to get out of here I in going to arrest you " I said I'd like to talk to you a little bit and explain our position He said There's not going to be any talking I'm going to arrest you I again tried to explain our position and he told me that he had had three or four calls and that he was going to arrest us if we didn t get out of there, that he didn t care what our position was or anything else that we were in Berrey [sic] County and we did what he said 974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD At that particular time, we stepped out onto the sidewalk that is adjacent to the Ramey s, on the north side of the street I tried to explain to him about what handbilling in the drives would do, the traffic problem that it would cause with cars stop ping on Broadway He said, If you cause any traf fic stop, I'll arrest you for that also After the officer from the sheriff s office arrived, the Union's handbillers were stationed for 15 to 25 minutes at the center sidewalk ( at the end of the T, G C Exh 6) A car stopped for a handbill and it came close to being a rearend collision," Kabell said Kabell later explained on cross examination that on Saturday, September 5, when he met and talked with the Broadway Ramey store manager, Leo Wallace, the Union was allowed to handbill on the sidewalk in the middle of the parking lot Handbillers were also sta tioned that day at the top of T at the edge of the side walk or shoulder next to Broadway According to Kabell, the store objected to any handbillers being on the sidewalk that runs between the north wall of the store and Broadway Said Kabell They wanted us to stand on the edge of this shoul der, they didn t want us on the sidewalk, period, you know On the north or the west of the market, they wanted us on the shoulder which existed be tween the sidewalk and Broadway Ramey s Monett Cleveland store, along with the adja cent parking lot which lies primarily on the south, is de picted in the sketch received as General Counsels Ex hibit 7 The store is located on the north side of the city at the northeast corner of Cleveland Avenue (an east west thoroughfare) and Seventh Street north south thor oughfare) Kabell described the entrances and exits for the parking lot and the store itself as follows There are three places that you can enter and exit this particular Ramey s store at 7th and Cleve land One that comes off Cleveland Street on the east side of the parking lot that enters into what be comes an alley once it gets up to the side of the store It s an alley and a drive jointly that enters the store Two other exits, those being on the west side of the store, that serve both as entrances and exits that enter into and exit off of 7th Street The store itself, the main doors of the store are centered on the south side of the building There is a door going in and a door going out I believe its a double door there It was stipulated that Respondent Roswil Inc, d/b/a Ramey s Super Market [sic] owns at all times referred herein a leasehold interest to the store shown as the Ramey s Monett Store on General Counsel [sic] Exhibit 7 And to the sidewalks that are immediately by that building, and the lease also covers the parking lot But the lease does not cover the sidewalk that is shown immediately by Cleveland Avenue up there which is a public sidewalk, outside of the lease cov ered by the diagram Kabell said he stationed handbillers on the sidewalks just to the sides of the door rather than on Seventh Street or Cleveland Avenue in the interests of safety, proper traffic flow and obtaining effective communica tion with the public Kabell said he visited Ramey s Monett Cleveland Street store (G C Exh 7) on a Sunday on or about Sep tember 6 He had received a telephone call and received the message that the handbillers had been asked to go to the street to handbill When he arrived at the store they were sitting on the trunk of an automobile parked on Seventh Street waiting with handbills for customers who might drive into or out of the parking lot Kabell said he met and discussed the situation with David Clark, the store manager, as follows I went in and introduced myself as to who I was He introduced himself I told him I understood he'd asked the girls to leave the property, not to handbill at the door, and he affirmed that was true I then told him that I felt that we were a labor organiza tion within our rights of advertising our dispute He said My orders are that you can t be there This is private property If you come there, then 111 have to call the police ' Kabell then told the handbillers to stay at the edge of the property back with the drive and left He thought the handbilling was ineffective at the store only one car stopped for a handbill while he was there he said On cross examination, Kabell acknowledged that the Union had a consumer picket" on the sidewalk next to Cleveland Avenue and the Union was not asked to remove it The General Counsels Exhibit 8 is the sketch that Kabell drew to show how Newton s store is situtated on the north side of Highway 13 in Crane Missouri Kabell said the highways has curves on either side of the store and is very busy He thought the speed limit for the highway in that area was 45 miles per hour There is a parking lot in front of the store There is a driveway at each end of the parking lot and one may use either in driving onto or leaving the highway A ditch and grassy right of way separates the driveways and each driveway is located some distance ( 250 275 feet, possi bly even 300 ) from the Newton store s entrance The General Counsel (and the Union) agreed in sub stance with the following proposed stipulation [A]t all times material herein up to and prior to November 1, 1981 Don Newtons Supermarket Inc the Respondent, was a lessee to the premises shown on General Counsels Exhibit 8 as the New ton s Store including the sidewalk and the parking lot therein shown that Mr Newton and another in dividual were the fee simple owners of the real estate and the lessors, and Respondent Don New ton s Supermarket was the lessee of that store, and the sidewalk and parking lot shown in that General MOUNTAIN COUNTRY FOOD STORE Counsel's Exhibit 8 with the right to control the use of those premises Kabell said, handbillers were stationed on the side walk adjacent to the doors , to the side of the doors in early September 1981, again pointing out that handbilling at the door is more effective He asserted that there was hardly room for handbillers to stand in a driveway there, that it would have been dangerous for them if they had and , moreover, would have caused a backup onto the highway Kabell identified the General Counsels Exhibit 9 as the "map I drew of the stopping center at the Junction of Highway 13 and Highway 76 at Lakeview, part of which is the Mountain Country Supermarket parking lot It is to be noted that the shopping center is located at the northeast corner of the junction of the highways and that the Mountain Country or Lakeview store is lo cated in the north part of the rectangular building A sidewalk runs between that building and a smaller build ing on the west that houses several shops and a restau rant The parking area is large and surrounds the two buildings Kabell desnbed the businesses and physical features of the shopping center as follows The parking lot is used by the general public, the consuming public, by customers of Mountain Coun try Supermarket There is a bank there There's a beauty shop, a jewelry store, a restaurant, several other businesses there It s just the general consum ing public There s also a gas station on the corner of the lot There s a Chevrolet dealership adjacent to the lot There are three drives that serve both as en trances and exits that come off of both Highway 13 and also 76, to drives coming off 13, one coming off 76 The drives, again, you enter going downhill into the parking lot The Mountain Country Supermar ket itself is on the northeast section of the shopping center It has the main doors in the approximate center of its building, facing west, a door going in another door coming out The parties stipulated that- Respondent Mountain Country Food Store Inc holds a leasehold interest to the Mountain Country Market shown on Exhibit 9 which includes a right to use the parking lot and to control the use of the parking lot, except to the extent that any conflicting interests of the other shops or store owners located therein, which also has the right to use that parking lot Kabell said in early September 1981 he stationed hand billers on the sidewalk just to the side of the doors going into Mountain Country Supermarket ' He thought there were 15 different busineses located in the area and that the Union didn t want to bother the public that was not going to the Mountain Country Supermarket where the Coca Cola product was sold ' Again, he wanted public face to face handbilling directly in front of the store" and, he said, he wanted to avoid en 975 dangenng people and the possibility of traffic backups and traffic accidents on Highway 13 and Highway 76 On cross examination Kabell said he assumed that the restaurant in the shopping center sold Coca Cola He was unaware of whether the gas station or the bank had coke machines He stated that the Union had picketed on the highway a few times near the Lakeview Shopping Center Lindy Lee Mitchell testified that she was paid at the hourly rate of $4 by the Union to handbill the Ramey s Broadway store, the Newman store, and certain other stores in southwest Missouri Specifically , she said she stood at the position marked A in green on the Gener al Counsels Exhibit 6 on a very hot day in September and undertook to handbill as persons drove automobiles into the Broadway store by making a left turn off of Broadway She said most of the traffic into the parking lot came in that way and she had a hard time getting any cars to stop to take the handbills She said the stores did not interfere with her handbilling at the posi tion indicated but that she had been asked to move off of the sidewalk Donna Barnhouse said she handbilled for the Union be tween September 1 and November 1 She told of hand billing one day in September with another handbiller at the front door of the Aurora Ramey store-indicated as point A ' on the General Counsels Exhibit 5-and later at point B where automobiles entered the parking lot off of College Street, utilizing the end of an alley She said about 95 percent of the customers entering the store at point A accepted the handbills but she thought 60 percent of the cars entering the parking lot had refused to stop and take a handbill She stated that the cars drove into the lot at a fast rate and she had to jump out of the way five or six times Barnhouse said she was told to move from the front door of the store to the entrance of the parking lot after the manager of the store came out of the store and talked to Union Official Jim Kabell Bamhouse said she was at point A for about 20 min utes the first day but handbilled at point B ' that day for about 3 hours and on 15 or more other days Deborah Francisco said she was paid to handbill for the Union at Ramey s Cleveland store on or about Septem ber 5 or 6 and at the Lakeview Mountain Country Food Store on or about September 10 and 11 Francisco said she handbilled briefly at the front door of the Cleveland store (marked A ' on G C Exh 7) until the store manager told her to move at which time she moved to B where cars enter the parking lot from Seventh Street Handbilling was much easier' at A,' she said, because at the B position most cars would not stop Francisco said she handbilled at the door of the Lake view store (marked A on G C Exh 9) as customers entered and left She said she was accompanied by two other handbillers on the first day and by one other on the second day Francisco said she was asked to leave the Lakeview store but did not do so immediately' be cause she thought the area was "public and that she had been cleared by Union Official Kabell to be there She said she eventually left because Maze, the manger of the 976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Lakeview store, told her she would be arrested if she re mained 7 Patricia Nehl said she was paid by the Union to hand bill customers entering and leaving the Newton s store on September 7 She said she and two other handbillers stood on the sidewalk near the door (marked A on G C Exh 8) for about 3 hours Jeffery Gibson a 19 year old former employee of Coca Cola of Aurora and member of the Union testified that he handbilled with his older brother at the Ramey s Broadway store in Monett on or about September 7 He said he first stood on the sidewalk at the side' of the main front door (marked C' on G C Exh 6) and hand billed Ramey customers until the assistant manager of the store prevailed on Kabell to have the handbilling stopped at that position Gibson said he told customers entering the store that he was a Coca Cola employee and that he wanted to give them information about the strike against the bottling firm Gibson denied on cross exami nation that it was difficult for customers to walk by him a six footer (approximately), or his taller brother Gibson said he later took up a position at an entrance to the parking lot on the Broadway side (marked D" on G C Exh 6) where less people took the handbills from us Richard Taylor executive vice president of Roswil, Inc, testified that his company operates 22 Ramey stores and that it is the firm s policy not to allow handbilling at any of them He stated that there could be an inventory in a given store ranging all the way from $1,000 up to $3,000 in Coca Cola products He thought the sale of such products would represent approximately 3 or 4 per cent of the total income of a store Taylor said the three Ramey stores involved in the proceeding objected to the handbilling because it inter fered with customers (including the traffic flow ), clut tered the stores and presented an insurance hazard Cus tomers could complain about being harassed or asked to read something that they re not interest in he said Some Ramey store leases specifically forbid solicitations on the parking lot according to Taylor Taylor stated that the company almost lost a lease for a Springfield store because there was some handbills and stuff going on in the parking lot The company spent $18 000 in de fending its position in court in an action brought by the landlord Taylor asserted Finally Taylor took exception to a union being allowed to come on a company s pn vate property, for which it has invested money and on which it has paid taxes, to tell customers that they should not buy a product that the company is selling Don Newton testified that he operated the Newton store in Crane prior to suffering a heart attack and his retirement in late 1981 He said the store now has a new 7 Francisco explained on cross-examination that there were coke ma chores (indicated on G C Exh 9 by X s ) and other vending machines on the sidewalks of the Lakeview Shopping Center which she said led her to believe the area was a public walk She stated that Maze asked her on September 10 to speak with the local prosecuting attorney whom Maze apparently telephoned She said she did so and was told that hand billing could continue at the shopping center if done from 8 feet or more from the door It was evident that Maze who put up a notice advertising coke at a reduced puce interpreted the prosecutors advice differently The next day September 11 Francisco said she handbilled only 10 or 15 minutes and left owner and that he only has an interest in the land on which the store is situated Newton stated that it had been his policy to let nobody post anything in my win dows and my store or to solicit anything He recalled that he had lost business at one time as a result of the fact that, without his knowledge, somebody stuck up a sign in my front window one time campaigning for a certain [school] board member which happened to be against a customer of mine Newton described the Union s handbilling of his store in 1981 as follows The handbillers pulled up right in front of my store and parked at the prime location, right at the front door parked their car there and was obstructing, stopping my customers from coming in and out of the store passing out these handbills And at first I didn t realize what was going on And I finally went outside and asked them what they were doing And they told me what they was doing there And I said Well, it s funny to me that you didn t come in and ask my permission I do own this place of business, I own this property I be lieve it s mine And so I 11 appreciate it if you would leave And they said they didn t want any trouble so they left And another reason is that the handbills was scat tered all over the store and the shopping carts you had to go around and police the area And that s how I discovered they were outside I seen this lit erature laying around Newton estimated that an inventory of all products a the store would have run between $4 000 and $5,000 but he could not estimate what percentage of that amount would have been in Coca Cola products He thought Coca Cola products might have been two to three percent of the total inventory James R Maze identified himself as manager and part owner of the Lakeview Mountain Country Food Store He recalled that the Union did handbill his store on Sep tember 10 and 11 He maintained that 3 girls were there on September 11 as well as on the day before Maze stated that the handbillers interfered with his cus tourers He said that the handbillers stood within 3 feet of the door and harassed customers with a hardshell ap proach' by placing unwanted handbills in their faces Said Maze [I]t makes them unhappy and they don t want to come back and pretty soon I in not going to be able to pay the bills And I have nothing to do with Aurora Coca Cola other than selling their products And I don t see why in the world I should be in volved in it If I owned stock in the company or owned the company I could see it But you re sit ting here an innocent bystander and all of a sudden here comes somebody along that is going to inter fere with your livelihood MOUNTAIN COUNTRY FOOD STORE 977 Maze thought Coca Cola products constituted approxi mately 2 to 3 percent of his total inventory of merchan dise Maze testified that after placing an ad in a local news paper he was visited by two persons whom he under stood to be union members He said he was told he would be picketed if he did not pull the portion of the ad that referred to the sale of Coca Cola products Maze said he was also asked to refuse delivery of 200 cases of coke that he had ordered Maze expressed the view that Coca Cola employees could have effectively advertised their position over a Springfield radio station as another union had in seeking to organize employees of a hospital in a nearby commu nity Did the Respondents, operators of the five southwest Missouri retail grocery stores, violate Section 8(a)(1) of the Act by telling union handbillers, who were pose tioned on Respondents premises outside of the stores on parking lots and near the entrance exit passageways, that they would not be allowed to remain to distribute hand bills carrying a message designed to discourage the pur chase of products of one of Respondents suppliers? Re garding the Newton store, the answer to the question posed is unquestionably in the negative as Don Newton, the owner operator of the store, sold the store in 1981 The evidence further indicates that Newton s physical condition makes it unlikely that he will operate a buss ness in the future so entry of a case and desist order against Newton would accomplish nothing whatever the respective rights of Newton and the Union were See Northern Indiana Tool, 233 NLRB 917 (1977) also NLRB v Armitage Sand & Gravel, 495 F 2d 759 (6th Cir 1974) The answer regarding the other two Respondents, involving operation of the three Ramey stores and the Lakeview Mountain Country Food Store is not so easily determined After careful examination of the record and applicable authorities I am constrained to hold that the union handbillers had a right to handbill on the premises of the four stores in question The discussion that follows applies only to Respondents Ramey and Lakeview At the outset, I am satisfied that the Union s handbill ing which was unquestionably peaceful 8 and designed to discourage the purchase of Coca Cola products in order to support the strike against the Aurora bottler was protected concerted activity under Section 7 of the Act 9 A union acting on behalf of employees undoubte ly has a right to advance and preserve employment standards by engaging in such activity The Board has long held that members of the working class generally and not employees of a particular employer are entitled to the Acts protection Briggs Mfg Co, 75 NLRB 569 (1947), citing (at fn 3) Phelps Dodge Corp v NLRB, 313 U S 177 (1941) See also Eastex Inc v NLRB, 437 U S 556 (1978), and Seattle First National Bank v NLRB 651 F 2d 1272 (9th Cir 1980) remanding 243 NLRB 898 (1979) Resolution of the principal issue, framed above, obvi ously calls for a balancing of the conflicting property and Federal statutory rights There are a number of Su preme Court and other decisions that afford guidance in determining how the competing interests in the case at bar should be accommodated Some of the case involve union picketing and some involve union activity for a different purpose (e g , area standards picketing, organ[ zational activity) than undertaking to establish a con sumer product boycott The authorities are, nevertheless instructive in deciding the instant matter 10 A union may surely convey a message through the use of handbills if it may lawfully do so by means of picketing Cf Scott Hudgens 230 NLRB 414 (1977), NLRB v International Rice Milling Co, 341 U S 665 (1951) In Tree Fruits (NLRB v Fruit Packers Local 760), 377 U S 58, 71-73 (1964), the Supreme Court reversed the Board decision in a proceeding against a union which had picketed and handbilled at the entrances of 46 Seat tle Safeway stores in an effort to discourage the purchase of Washington State apples which were only one of numerous food products sold in the stores' The Court specifically rejected the Board s view that the pubicity other than picketing proviso in Section 8(b)(4)(ii)(B) necessarily outlawed any picketing of a secondary em ployer t t Said the Court We come then to the question whether the picket ing in this case, confined as it was to persuading customers to cease buying the product of the pri 10 At the hearing the General Counsel cited Administrative Law Judge Clifford H Anderson s decision in Case 16-CA-8581 involving very similar facts i e peaceful trespassory consumer product boycott hand billing on premises of a secondary employer On October 8 1982 the Board upheld Judge Anderson s holding that Montgomery Ward & Co violated Sec 8(a)(1) by demanding that a union stop handbilling public entrances to one of its stores located in a Tyler Texas shopping center but without finding it necessary to approve the Administrative Law Judge s extensive analysis or all of his findings and conclusions (265 NLRB 60) My decision in the instant matter was essentially in final form when I received a copy of the Board s Montgomery Ward decision My review of the Board s decision in such case does not suggest that my decision which holds that the Union had no effective alternative means of advis ing the consuming public of its dispute with Coca Cola and takes into ac count that the restrictions which Ramey and Lakeview placed on the Union s handbilling diluted its effectiveness is in error in any way 11 Sec 8(b)(4) in relevant part makes it unlawful for a union- (4)(i) to induce or encourage any individual employed by any person to engage in a refusal in the course of his employ ment to handle commodities or to perform any services or (u) to threaten coerce or restrain any person where in either case an object thereof is- (B) forcing or requiring any person to cease dealing in the products of any other producer processor or manufacturer or to cease doing business with any other person 8 Lakeview Manager Maze testified that he was asked to refuse to take delivery of a load of Coca Cola products at the Lakeview store It is ap parent that he did not accede to the request and there is no evidence that any deliveries were obstructed 9 This issue must be addressed first and determined as a threshold ques tion See Giant Food Markets v NLRB 633 F 2d 18 (6th Cir 1980) re manding 241 NLRB 727 (1979) Provided further That for the purposes of this paragraph (4) only nothing contained in such paragraph shall be construed to prohibit publicity other than picketing for the purpose of truthfully advising the public that a product or products are produced by an em ployer with whom the labor organization has a primary dispute and are distributed by another employee 978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD mary employer, falls within the area of secondary consumer picketing which Congress did clearly in dicate its intention to prohibit under § 8(b)(4)(ii) We hold that it did not fall within that area, and therefore did not threaten, coerce, or restrain Safeway While any diminution in Safeyway's pur chase of apples due to a drop in consumer demand might be said to be a result which caused respond ents' picketing to fall literally within the statutory prohibition, "it is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers ' Holy Trinity Church v United States, 143 U S 457, 459 See United States v American Trucking Assns, 310 U S 534, 543-544 When consumer picketing is employed only to per suade customers not to buy the struck product, the union s appeal is closely confined to the primary dispute The site of the appeal is expanded to in clude the premises of the secondary employer, but if the appeal succeeds, the secondary employer s purchases from the struck firms are decreased only because the public has diminished its purchases of the struck product On the other hand, when con sumer picketing is employed to persuade customers not to trade at all with the secondary employer, the latter stops buying the struck product, not because of a falling demand, but in response to pressure de signed to inflict injury on his business generally In such case, the union does more than merely follow the struck product, it creates a separate dispute with the secondary employer We disagiee therefore with the Court of Appeals that the test of to threaten, coerce, or restrain" for the purposes of this case is whether Safeway suf fered or was likely to suffer economic loss A viola tion of Sec 8(b)(4)(ii)(B) would not be established, merely because respondent's picketing was effective to reduce Safeway's sales of Washington State apples, even if this led or might lead Safeway to drop the item as a poor seller 12 In its 1979 decision in Giant Food Markets (enforce ment denied supra) involving area standards picketing on property owned or controlled by Giant Food and K Mart, the Board analyzed a number of Supreme Court decisions handed down subsequent to Tree Fruits, includ ing NLRB v Babcock & Wilcox Co, 351 U S 105 (1965) Central Hardware C o v NLRB, 407 U S 539 (1972) Hudgens v NLRB, 424 U S 507 (1976) and Sears Roe buck & Co v San Diego County District Council of Car penters, 436 U S 180 (1978) Quoting from the Board s decision 12 On the same day that it decided Tree Fruits the Supreme Court handed down NLRB Y Servette Inc 377 U S 46 (1964) holding the pub licity proviso in Sec 8(b)(4)(u)(B) also protected a union s handbilling of a secondary employer-contrary to the holding of the court of appeals which had regarded the primary employer Servette as only a distributor and outside of the protection of proviso because it had not produced a product or porducts [T]he protected nature of a general form of picket ing does not necessarily clothe the pickets with a right to infringe upon the private property rights of others In Hudgens v NLRB, the Supreme Court held that any rights which pickets might be afford ed to engage in such activity on private property do not emanate from the first amendment of the Con stitution, but rather have as their source the Nation al Labor Relations Act It further counseled that the Board, in determining the extent of such rights, should accommodate the Section 7 rights and pn vate property rights with as little destruction of one as is consistent with the maintenance of the other " [Citing Babcock & Wilcox ] This approach was prescribed by the Court in Babcock & Wilcox, supra, and Central Hardware Company v NLRB, both dealing with union organizing by nonem ployees on private property, and was also applied to the primary picketing in support of an economic strike involved in Hudgens Although the picketing here is dissimilar in purpose to either the organiza tional activity involved in Babcock, or the primary economic picketing by the employers employees in Hudgens the Board s role is the same-to accom modate the Section 7 rights of the pickets with the private property rights of the Employer [Citing Sears, supra ] However, as the Court pointed out in Hudgens, the locus" of the accommodation of these rights `may fall at differing points along the spectrum depending on the nature and strength of the respective Section 7 rights and private property rights asserted in any given context ' The United States Court of Appeals for the Sixth Cir cuit on October 23, 1980, cited supra declined to enforce the Board's Order in Giant Food and remanded for taking of additional evidence as it found that the Board had determined that the union s area standards picketing was protected on the basis that picketing at the parking lot entrance would have been ineffective-as the union s message would have been diluted' and the picketing would have enmeshed a neutral employer- without case authority and, perhaps more importantly, without reference to supporting facts in the record The Court s opinion, which also contained analyses of the cited Su preme Court cases, does not, as I read it disagree with anything the Board said in the portion of the opinion quoted above The Court also cited the Supreme Court s 1968 in Amalgamated Food Employees Union v Logan Valley Plaza 391 US 308 (1968) holding that area standards picketing at a privately owned shopping center was protected on a constitutional basis The Court noted that the Supreme Court thereafter distinguished Logan Valley but ultimately overruled such holding in Hudgens The Court in Giant Food indicated that Babcock & Wilcox teaches that the accommodation principle is to be applied whenever there is a conflict between property rights and protected activity But the Court pointed out that a union s organizational activity which has an object of communicating with employees, is different from area standards picketing where the intended audi ence includes consumers and potential patrons of a sec MOUNTAIN COUNTRY FOOD STORE 979 ondary employer The present case, although involving different issues than area standards picketing, obviously involves a situation more akin to the latter than the former Cf Seattle First National Bank v NLRB, supra It is apparent that the Union involved here, as in Giant Food, must be allowed a reasonable means of commune cation with the consumers' The Union here could have utilized radio or other media in advertising its dispute with Coca Cola but clearly, on this record, the former could not have been limited to such a means of commu nication As the court stated in Giant Food (633 F 2d at 24-25) A mass media campaign would also diffuse the of fectiveness of the communication by being physical ly removed from the actual location of the store whose policies are at issue and would prevent any personal contact between the union and the intend ed audience In this case, the choice is not between disseminating information through the media away from the store itself and on site picketing Instead the choice is between locating the pickets on the private property near the entrance of the store and locating them across the parking lot on public prop erty adjoining the thoroughfare and near the en trance and exit to the parking lot See also Scott Hudgens, supra, and Seattle First National Bank, supra 13 I believe the choice to be made here re garding handbilling of the Respondent grocery stores is essentially the same, e e , either on the private property near the entrances to the stores or off of such premises on public property near the entrances and exits to the parking lots There is persuasive evidence here, from the handbillers themselves, that handbilling from public property was in effective Such handbilling also resulted in congestion and some risk to the handbillers and even to automobile drivers and passengers Further handbelleng at such pose tions provided little opportunity for any communication between the handbillers and members of the public who are potential customers of the Respondent stores There is no persuasive evidence that the handbillers interfered significantly with ingress or egress at the La keview or any of the three Ramey stores in question The number of handbillers at each store was reasona ble 14 Employees were not harassed and deliveries were not obstructed The store officials were obviously an noyed that the handbillers might adversely affect sales, but such fact did not operate to cut off the Union s right to be on the shopping center' s premises See Tree Fruits, supra, also Scott Hudgens, supra The premises of all four stores, including the adjacent sidewalks and parking lots, here were, as in Scott Hudgens, supra, essentially open to the public 15 Lakeview Manager Maze indicated in his testimony that he felt his store was being unnecessarily drawn into a labor dispute that should involve only Coca Cola, the primary employer, but his store, as well as Ramey, was not simply an "innocent bystander' as it was financially interested in the sale of Coca Cola products See Tree Fruits, supra, Scott Hudgens, supra, also Lloyd Corp v Tanner, supra, holding handbilling unrelated to the shopping center s operations (regarding resistance to the draft and Vietnam War) to be not constitutionally pro tected I am persuaded that application of the Babcock & Wilcox criteria to the facts of this record requires me to hold that the Union's right to handbill at the Lakeview and three Ramey stores, near the areas where customers enter and exit, outweigh the stores' property rights Thus, I find that the union handbillers were not required to move to the street or public sidewalk to perform the handbilling activity as they were asked to do While the Union s handbilling on the stores' premises was protected activity, it does not necessarily follow that any request made to the handbillers to cease such active ty would have resulted in violation of Section 8(a)(1) Presumably a person may be willing voluntarily to change his or her physical position on any given prem ises at the peaceful, nonthreatening request of another without a violation of law occurring The argument for such a proposition would be more persuasive, no doubt, where the respective rights of the parties with respect to the use and control of the premises is unclear Cf Giant Food supra (633 F 2d at 25-26), Sears, supra (436 U S at 207-208) The record here, however establishes to my satisfaction that Respondents' requests that the union handbillers move away from the doors of the stores and off of their premises (which terms includes shopping center property) were of a nature that reasonably caused the handbillers to move or be moved, involuntarily Such requests constituted demands and were coercive in violation of Section 8(a)(1) of the Act The requests that were made of the handbellers at the Ramey Aurora store on or about September 7, the Ramey Cleveland store on or about September 6 and the Lakeview store on or about September 10 and 11 were particularly coercive as 13 In seeking access to an employers private property for organization al purposes a union unquestionably has the burden of showing there is no other reasonable means of communicating with the employers employ ees See Hutzler Bros Co v NLRB 630 F 2d 1012 (4th Cir 1980) revers ing 241 NLRB 714 (1979) Quoting from the courts s opinion in Seattle First National Bank (651 F 2d at 1276) [T]he Supreme Court has held that in organizational picketing cases the union has the burden of showing that no other reasonable means of communicating its message to the employees exist NLRB v Bab cock & Wilcox Co 14 There was (unrebutted) testimony by the Newton s store owner-op erator that the Union s handbilling of his store was of an obstructing kind but the case regarding this Respondent is being dismissed on a pro cedural basis and not on the merits 15 Fn 24 in the Boards decision in Scott Hudgens reads The invita tion is to the public in the sense that all members of the public are con sidered potential customers Quoting further from such decision (230 NLRB at 417) Specific intent to buy is not a prerequisite to invitee status the fact that many people buy on impulse is explicitly recognized in the design and layout of the Center s commercial environment As mem bers of the public the men who carried the signs were apparently within the scope of the invitation and welcomed as long as they did not picket Cf Lloyd Corp v Tanner 407 U S 551 (1972) (The es sentially private character of a store and its privately owned abutting property does not change by virtue of being large or clustered with other stores in a modern shopping center ) 980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD they were coupled with a threat of arrest Subparagraphs (a)(i), (a)(u), and (a)(v) of paragraph 7 were sustained 16 Certain of Respondents arguments and authorities relied on in their comprehensive brief require comment Respondents indicate that Board precedent should be dis regarded here in favor of higher binding authority of decisions by the United States Supreme Court and provi sions of the United States Constitution Respondent urges that the Board return to those sound values [established in earlier Supreme Court decisions] and to discontinue seeking to assist labor organizations to confiscate proper ty from employees such as these Respondents I am, of course, required to follow Board precedent See Ford Motor Co, 230 NLRB 716 (1977), enfd 571 F 2d 993 (7th Cir 1978), affd 441 U S 488 (1979), but I do not consider my ruling here, granting the Union access to Respondents' premises so that it may peacefully inform potential customers that it opposses Respondents sale of a product, or a limited line of product, produced by an employer with which it has a labor dispute as contrary to the Constitution or any Supreme Court decision In Hudgens v NLRB, supra, the Supreme Court stated that Babcock & Wilcox established that the primary re sponsibility" for accommodating Section 7 rights and pn vate property rights `must rest with the Board in the first instance ' The Court did hold in its later Sears, supra, decision that a state trespass action could be sought by the department store against a union s picket ing where the picketing was arguably protected by Sec tion 7 of the Act, arguably in violation of Section 8 of the Act, and the store was unaole to obtain a direct ruling from the Board But the Supreme Court s general guidelines on Federal preemption in labor management relations, set forth in San Diego Building Trades Council v Garmon, 359 U S 236 (1959), remains undisturbed Quoting from the Court s opinion in Garmon at 236 When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the Na tional Labor Relations Board if the danger of state interference with national policy is to be averted If the Board decides subject to appropriate federal judicial review that the conduct is protected by § 7 or prohibited by § 8 then the matter is at an end and the States are ousted of all jurisdiction US v Causby, 328 U S 256 (1946), involving the question of whether frequent low level flying military aircraft over property of a private homeowner constitut ed an unlawful taking of property by the Government is not a precedent to be used in balancing Section 7 rights and property rights of a secondary employer grocery store under Babcock & Wilcox This is also true with re spect to the Supreme Court's very narrow holding in Loretto v Teleprompter Manhattan CA TV Corp 102 S Ct 3164 (1982), involving permanent physical occupation 18 I read the word tell as used in par 7 to include a demand or any threatening or coercive request Par 7(b) is somewhat duplicative of par 7(a)(i) and par 7(a)(v) and in any event on this record is cumulative Therefore par 7(b) as well as par 7(a)(ii) is being dismissed of part of an apartment building (in the form of a cable installation by dropping a line to the first floor down the front of an apartment building) which had been sanctioned by a state commission acting under a New York State statute I do not read Prune Yard Shopping Center v Robins, 447 U S 74 (1980), as holding, as Re spondents apparently do, that the Board is without au thonty to allow Charging Party Union to peacefully handbill on Respondents premises In Prune Yard the Court affirmed the California Supreme Court's holding that high school students could, pursuant to a California Constitutional provision, enter on the premises of a shop ping center and peacefully hand out literature and solicit support for a petition in opposition to a United Nations resolution against Zionism without unconstitutionally (i e, contrary to the fifth amendment) taking property from the shopping center owners The Court pointed out that the shopping center owners had not demonstrated that the right to exclude others ' was so essential that the state authorized limitation of it amounted to a taking Significally, the Court explained later in Loretto, in discussing Prune Yard, that labor cases requiring com panes to permit access to the organizers" are not appli cable in a case like Loretto I reject Respondent's contention that the `mere pend ency of" this proceeding violates the fifth and tenth amendments so as to warrant my dismissal of the instant matter None of Respondents authorities compel such result in view The handbilling involved here, to be sure was by non employees of Respondents but rights of employees (i e Coca Cola employees) are involved Protected activity in support of an economic strike are unquestionably entitled to considerable weight in applying the Babcock & Wilcox criteria Quoting from the Court's decision in Seattle First National Bank, supra The right to picket in support of an economic strike is at the core of section 7 See United Steelworkers v NLRB 376 US 492 499, 84 S ct 899 904, 11 L Ed 2d 863 (1961) Teamsters Local 807, 87 N L R B 502 504-505 (1949) Accordingly unions should be allowed to picket in support of a strike in an effective manner whenever possible A different accommodation might be appropriate if some activi ty not at the core of section 7 such as area stand ards picketing were at issue See Sears Roebuck & Co v Carpenters 436 U S 180, 214, 98 S Ct 1745 1766, 56 L Ed 2d 209 (1978) (Powell J , concur ring), but cf Giant Foods Markets Inc 241 N L R B No 156 6 (June 10 1977) (area standards picketing permitted on private property) Further cases like Farah Mfg v NLRB, 450 F 2d 942 (5th Cir 1971) cited at 19 of Respondent s brief, holding that an employer may properly exclude nonemployees who seek to come on his premises for the purpose of or ganizing his employees, are not apposite here Finally, I reject Respondents contention that the first amendment and Section 8(c) of the Act preclude a find ing that Respondents engaged in the unfair labor prac tices charged here The order which I shall recommend MOUNTAIN COUNTRY FOOD STORE 981 will not unconstitutionally force Respondents to assist the charging party in disseminating information' about its labor dispute The proceeding does not seek to deny Respondents right to sell Coca Cola products or adver tise them The FCC access rules imposed on cable opera tors in Mid West Video Corp v Federal Communications Commission, 571 F 2d 1025 (8th Cir 1978), are quite dif ferent from the kind of access that is sought by the Union here CONCLUSIONS OF LAW 1 Each of the Respondents is an employuer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the mean ing of Section 2(5) of the Act 3 By demanding that union handbillers leave stores premises while engaged in activity protected under Sec tion 7 of the Act, Respondents Ramey and Lakeview violated Section 8(a)(1) of the Act As a remedy, I shall recommend that Respondents Ramey and Lakeview cease and desist from engaging in the unfair labor practices found and take certain affirma tive action which will effectuate the policies of the Act On these findings of fact and conclusions of law and on the entire record, I issue the following recommend edi' ORDER The Respondents, Mountain Country Food Store Inc, Lakeview Missouri, and Roswil, Inc, d/b/a Ramey Su permarkets, Aurora and Monett, Missouri their officers agents, successors, and assigns shall 1 Cease and desist from (a) Prohibiting representatives of the Union from dis tributing handbills as part of protected concerted activity of demanding that they leave Respondents premises (b) 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) Post at their respective stores involved in this pro ceeding (i e , the Ramey Aurora, Missouri store, Ramey Cleveland Street store in Monett, Missouri, Ramey Broadway store in Monett, Missouri, and Mountain Country Food Store, Inc, in Lakeview Missouri) copies of the attached notice marked Appendices A and B 18 Copies of the notices, on forms provided by the Regional Director for Region 17, 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 (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 17 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 pur poses 1e 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