Thriftway Supermarket, A Single Employer

THRIFTWAY SUPERMARKET Granco, Inc., d/b/a Thriftway Supermarket; Blan- tom Corporation , d/b/a Thriftway Supermarket; and Bland A. Painter, Jr., d/b/a Thriftway Su- permarket, a Single Employer and Food and Commercial Workers Union Local No. 278, UFCW International Union, AFL-CIO, CLC. Cases 5-CA-16765 and 5-CA-17018 May 24, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On October 24, 1985, Administrative Law Judge Benjamin Schlesinger 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 record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions2 and to adopt his recommended Order 3 The judge's decision issued before Jean Country,4 which clarified our analytical approach for resolv- ing nonemployee access to private property cases. As more fully set forth in the judge's decision, the Union sought access to Respondent's property to inform customers by means of handbills and picket signs that the Respondent had committed and not remedied serious unfair labor practices5 and to i The Respondent has excepted to some of the judge's credibility find- ings 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 2 We find it unnecessary to address the judge's conclusion that the Re- spondent violated Sec 8(a)(1) of the Act by instituting criminal proceed- ings against Bittner The Respondent's exceptions to this conclusion do not meet the minimum requirements of Sec 102 46(b) of the Board's Rules and Regulations The Respondent merely cites to the judge's deci- sion and fails to allege either in its exceptions or its brief in support there- of with any degree of particularity the error it contends the judge com- mitted in so concluding, or on what grounds it believes the judge's deci- sion as to this violation should be overturned In these circumstances, we find in accordance with Sec 102 46(b)(2) that the Respondent's exception on this point may be disregarded See Bonanza Sirloin Pit, 275 NLRB 310 (1985) We also note that no party has excepted to the judge 's finding that the Respondent did not violate the Act by instituting criminal pro- ceedings against David a In the absence of any evidence that the number of picketers was an issue in this case, Member Cracraft would modify par 2(a) of the recom- mended Order to delete the phrase "so long as that activity is conducted by a reasonable number of persons " 4 291 NLRB 11 (1988) 5 At the time in question , Judge Claude R Wolfe 's decision in a prior case had issued finding the Respondent violated Sec , 8(a)(1) and (3) and recommending a bargaining order under Gissel Packing Co, 395 U S 575 (1969) Most of Judge Wolfe's findings and his recommendation of a bar- 173 urge them not to patronize the Respondent's store. The activity was for the benefit of the Respond- ent's employees represented by the Union at the place where they were employed and where the Respondent conducted its business. As the judge found, the Respondent's property6 was held open to the public and it allowed other uses-such as hotdog and bake sales-on its property. The Union began its information campaign on October 26, 1984, with four persons wearing picket signs around their necks and distributing handbills that contained further information One person was stationed on the grassy island, two in the front parking lot, and one in the lot near the supermarket entrance One of the picketer/handbillers, Richard Adams, distributed 100 handbills on the first morn- ing He testified that some customers who received the handbill after they had parked returned to their car and left the premises without going into the store. On the afternoon of October 26, a policeman ac- companied by the Respondent's store manager and its president told the picketer/handbillers that if they did not leave the parking lot they would be arrested for trespassing. They then moved to the public grassy island . Adams testified that they did not give out handbills from the island because the highway and throughway are very congested and they did not want to stop the flow of traffic or cause an accident James Hepner, also a picketer/handbiller, testified that Highway 11 was a major thoroughfare that gets congested and is busy He stated that the picketer/handbillers feared an accident would be caused if they "gave out handbills or even talked to people and tried to ex- plain what was going on as they turned off of Route 11." The Respondent did not dispute the characterizations of the traffic or safety consider- ations. On October 29, two picketer/handbillers re- turned to the parking lot and two remained on the island. That afternoon, following threats and vitu- peration by the store manager, they were confront- ed by a policeman and three managers of the Re- spondent. The policeman told them that they were obstructing the Respondent's business and that he was giving them a designated area in which to picket. The designated area was at the right side of gaining order were adopted by the Board 276 NLRB 1450 (1985), enfd mem 808 F 2d 835 (4th Cir 1986) 5 The Respondent 's supermarket was located in a leased 110-foot-wide building adjacent to a vacant building that was previously used as a post office In front of and to the sides of the supermarket were parking lots and throughways The two main entrances to the property were in front of the store off State Route 11 , a two-lane road with a center turn lane and a speed limit of 35 miles per hour Between the highway and the parking lot was a state -owned grass island 90-feet long and 15-feet deep 294 NLRB No. 7 174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the supermarket, next to the former post office, far from the supermarket's single customer entrance. At the request of the Respondent's president, the policeman told the picketer/handbillers that they could not give handbills to persons in cars, that the customer would have to come to the designated area to receive one The officer stated that if they left the designated area they would be arrested for trespassing and would go to jail. Adams protested to the policeman that there was no way they could handbill from the designated area but was told to stay within the designated area. According to picketer/handbiller James Hepner, the policeman's final words before leaving were. "Everything's square. I don't want to discuss anything else. I don't want to come back. If I come back, I am going to take you to jail." From their earlier observation, the picketer/- handbillers knew that very few people parked in the parking lot near the designated area because there was nothing near the closed post office to prompt one to go there. Hepner also testified that while they stood in the designated area a person drove up in a car, asked what they were doing and reached for a handbill. Pursuant to the policeman's warning, they requested the person to park and return for a handbill. The driver did park but went into the supermarket and left without returning for a handbill. Also while in the designated area, Hepner observed that, in addition to having no cus- tomer contact there, cars on the road to the side of the store could not see their picket signs because of a projection of the building and that the picket signs could not be seen from the highway because of the distance. The picketer/handbillers returned to the public grassy island that afternoon and remained there through December 22. As the judge found, they distributed handbills from the island only when a customer returned for one after parking his car, a very rare occurrence. Picketers/handbillers returned to the Respond- ent's parking lot on two more occasions. On De- cember 22, picketer Adams was, as the judge found, intensely harassed by the Respondent's president. On December 24, the Respondent insti- gated criminal charges against two of the picketer/handbillers who were involved in a dis- pute with a customer. The picketer/handbillers did not return to the Respondent's premises after De- cember 24. As noted earlier, Jean Country clarified the ana- lytical approach for resolving conflicts between Section 7 and private property rights. In that case, the Board stated: Accordingly, in all access cases our 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 private property right if access should be granted We view the consideration of the availability of reasonably effective alternative means as especially significant in this balancing process. In the final analysis however, there is no simple formula that will immediately deter- mine the result in every case. Applying the Jean Country analysis to this case, we initially find that the Respondent leases the Thriftway store and property on which it is locat- ed and, therefore, that the Respondent's conduct with respect to the union picketer/handbiller was based on a legitimate property interest As previ- ously noted, however, the public is generally invit- ed onto the Respondent's property and the Re- spondent has allowed access to noncustomer per- sons or groups other than the Union, thereby weakening the property rights. The Section 7 activity asserted here, informing potential customers of unfair labor practices com- mitted by the Respondent, involves an important Section 7 right. The activity was for the benefit of the Respondent's employees by the Union that rep- resented them The picketing and handbilling were a result of the Respondent's conduct that the Board found unlawful and sufficiently severe to warrant a Gissel bargaining order. The Thriftway store was where the Respondent's unfair labor practices oc- curred. Thus, the target of the Union's activity was at the situs where the picketing and handbilling oc- curred, and that situs was the place where affected employees were employed. We also agree with the judge that, based on the evidence offered in this proceeding, there is little, if any, basis to find that the Union's activity disrupted the Respondent's business or inconvenienced its customers. We therefore find that the Section 7 right here is a strong one. The Union had two alternative means for com- municating with its intended audience It could either conduct its activity from the edge of the Re- spondent's store furthest from the only entrance, or from the public, grassy island between the parking lot and highway in front of the store.' Neither of these was a reasonable, effective alternative means of communication As the picketer/handbillers were aware, very few people came near the desig- nated area because there was no customer destina- tion near it. Moreover, the policeman's prohibition, 7 We agree with the judge's finding that mass communication was not a reasonable alternative THRIFTWAY SUPERMARKET 175 at the Respondent's insistence, of giving handbills to anyone in a car further limited this alternative's effectiveness. As Hepner's experience while in the designated area illustrated, even if potential cus- tomers would be interested in a handbill while in their cars, they would not walk out of their way to get it. We find that picketing and handbilling from the grassy island was also not a reasonable alternative. State Highway 11 had a 35-mile-per-hour speed limit with a traffic lane next to the island. It was uncontested that it was busy and congested. In these circumstances, we find that the picket- er/handbillers' fear of causing an accident or blocking traffic if they carried out any of their ac- tivities from there was a reasonable fear. Moreover, the policeman's prohibition of giving handbills to persons in cars was not limited in any way and was accompanied by a threat to take them to jail if he had to come back. In that circumstance we would not require the picketer/handbillers to test the po- liceman's meaning As Adams testified, it was "very seldom" that people would return to the island to get handbills after they had parked their cars In these circumstances, we agree with the judge's finding that the Respondent's property rights must yield to the Union's Section 7 rights and that Respondent violated Section 8(a)(1). ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent Granco, Inc., d/b/a Thriftway Supermarket; Blantom Corpora- tion, d/b/a Thriftway Supermarket; and Bland A. Painter, Jr, d/b/a Thriftway Supermarket, a single employer, Roanoke, Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the Order Mark M. Carissimi, Esq., for the General Counsel Fred F Holroyd, Esq. (Holroyd & Yost), of Charleston, West Virginia, for the Respondent Carey Butsavage, Esq. (Lechner & Butsavage, P.C.), of Washington, D C, for the Charging Party DECISION FINDINGS OF FACT AND CONCLUSIONS OF LAW BENJAMIN SCHLESINGER , Administrative Law Judge In 1980, Charging Party United Food and Commercial Workers Union , Local No 278, UFCW International Union, AFL-CIO, CLC (Union), began a campaign to organize the employees of Respondent Granco, Inc., d/b/a Thriftway Supermarket , Blantom Corporation, d/b/a Thriftway Supermarket , and Bland A Painter, Jr, d/b/a Thriftway Supermarket , three Virginia supermar- kets As a result of Respondent's conduct during the campaign, the Union filed unfair labor practices charges, a complaint issued (Cases 5-CA-12756, 5-CA-12855, 5- CA-13358, and 5-RC-11316); and hearings were held in August and September 1981 On 6 April 1982, Adminis- trative Law Judge Claude R Wolfe issued his decision (JD-158-82), finding that Respondent violated the Na- tional Labor Relations Act, 29 U.S C Sec 151 et seq in numerous respects and ordering Respondent to correct its violations and to bargain with the Union Exceptions to that Decision were filed The Union, ap- parently hoping thst the proceeding would be disposed of expeditiously, waited By late 1984, its patience was exhausted, and in October, it decided not to let Respond- ent's conduct continue to be both unremedied and un- publicized. i On 26 October, it commenced informational picketing at Respondent's three Virginia locations at Main Street in Troutville, and Williamson Road and Grandin Road in Roanoke 2 Its signs read- "Thriftway has committed unfair labor practices. Please don't shop It also distributed leaflets which stated THRIFTWAY UNFAIR MEMBERS OF UNITED FOOD AND COMMERCIAL WORKERS LOCAL 278 ASK THAT YOU NOT SHOP AT THRIFTWAY FOUR YEARS AGO THRIFTWAY'S EM- PLOYEES TRIED TO ORGANIZE A UNION TO IMPROVE THEIR WAGES AND WORKING CONDITIONS. THRIFTWAY RESPONDED BY FIRING SOME WORKERS WHO TRIED TO ORGANIZE AND COMMITTED OVER 25 OTHER SEPARATE VIOLATIONS OF THE FEDERAL LABOR LAW A JUDGE OF THE NATIONAL LABOR RE- LATIONS BOARD ORDERED THRIFTWAY TO PUT THE EMPLOYEES IT HAD FIRED BACK TO WORK AND TO BARGAIN WITH THE UNION THREE YEARS LATER, NOTHING HAS HAPPENED 1 On 16 October 1985, the Board affirmed almost all of the findings and conclusions of Judge Wolfe 276 NLRB 1450 2 Jurisdiction of the Board is not contested I find, as Respondent admits, that Granco is a Virginia corporation engaged in the sale of gro- ceries at retail at its Thriftway Supermarket store located at 139 Grandin Road, Southwest, Roanoke, Virginia, Blantom is a Virginia corporation engaged in the sale of groceries at retail at its Thriftway Supermarket store located at 7511 Williamson Road, Northwest, Roanoke, Virginia, and Painter, Jr operates a sole proprietorship engaged in the sale of gro- ceries at retail at 'his Thriftway Supermarket store located on Main Street, Troutville, Virginia At all times material herein, Granco, Blan- tom, and Painter, Jr (collectively Respondent) have been affiliated busi- ness enterprises, with common management and supervision , have pro- vided services for each other, have interchanged personnel with each other, have held themselves out to the public as a single-integrated busi- ness enterprise, have formulated and administered a common labor rela- tions policy affecting employees of said operations, and constitute a single-integrated business enterprises and a single employer within the meaning of the Act During the 12 months preceding the issuance of the complaint, a representative period , Respondent had gross retail sales in excess of $500,000 and during the same period purchased and received goods valued in excess of $50,000 directly from suppliers located outside the State of Virginia I conclude , as Respondent admits, that Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Sec 2(2), (6), and (7) of the Act I also conclude, as Respondent admits, that the Union is now, and has been at all times material herein, a labor organization within the meaning of Sec 2(5) of the Act 176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE ARE ASKING THAT YOU SEND A MESSAGE TO THE OWNERS OF THRIFTWAY THAT THE GOOD CITI- ZENS OF THIS AREA SUPPORT THE RIGHTS OF EM- PLOYEES TO EXERCISE THEIR FREEDOM UNDER THE LAW YOU CAN SEND THAT MESSAGE BY SHOPPING AT GOOD UNION STORES WHERE YOU KNOW YOUR FRIENDS AND NEIGHBORS HAVE EMPLOYEES WHO RESPECT THE LAW AND RESPECT THE DIGNITY OF THE PEOPLE WHO WORK FOR THEMt PLEASE DON'T SHOP What gives rise to this proceeding is Respondent's al- leged interference with the Union 's picketing and leaflet- ting at Respondent 's Williamson Road Thriftway Super- market (Supermarket) by, among other things, prevent- ing the Union from picketing on Respondent's premises, forcing the Union pickets away from the Supermarket, assaulting a picket , and filing criminal charges against two pickets, all allegedly in violation of Section 8(a)(1) of the Act.3 The Supermarket is leased by Respondent and occu- pies a 110-foot wide building fronted by approximately 75-100 feet of parking space and throughways , with ad- ditional parking space on each side The two main en- trances in the front of the property are located on State Route 11, a two-lane highway 4 At the points of entry off of Route 11, between the two entrances , is a state- owned grassed island, 90 feet wide and 15 feet deep. There is no sidewalk adjacent to Route 11 The principal entrance to the Supermarket (as one faces the building) is on the left-hand side; on the far right-hand side is an unused, former United States post office. To the right hand of the Supermarket 's entrance are five supporting columns, spaced 15 feet apart and located about 10 feet in front of the building wall, in front of which is a side- walk and in front of that is a 5-foot wide fire lane When the Union commenced picketing and handbilling on 26 October, its four pickets positioned themselves- one on the island, one in the left-hand parking lot, and two just outside the fire lane walking from an area near the post office to a point near the main entrance Typi- cally, after a customer parked, a picket gave the custom- er a leaflet in the parking lot or as the customer was walking to the entrance Shortly after the picketing began, Alex Zimmerman , the store manager , told Rich- ard Adams, then the Union's organizing director, that the pickets had to leave the property Adams replied that under Federal law they had the right to be there, and Zimmerman threatened to call the police and have the pickets removed if they did not leave at that time Adams said that Zimmerman would have to do what he 3 The relevant docket entries are as follows The unfair labor practice charge in Case 5-CA-16765 was filed by the Union on 26 October 1984 and a complaint issued thereon on 7 December 1984, the charge in that proceeding was subsequently amended on 10 and 24 December 1984, the charge in Case 5 -CA-17018 was filed by the Union on 11 February 1985, an order consolidating cases and an amended and consolidated complaint issued on 27 March 1985 , and a hearing was held on 23 May and 10 June 1985 in Roanoke , Virginia 4 There are also one or two turning lanes where Respondent's property is located ' had to do, but the Union had to do what it had to do The picketing continued , Adams alone distributed about 100 handbills that morning About 3 .30 p m, police officers arrived , entered the store, and came out of the store with Zimmerman and Bland A Painter III (Painter), the president of Granco, Inc: and an officer of Blantom Corporation A police of- ficer told Adams that the pickets would have to leave the parking lot; if not, they would be arrested for tres- passing Adams protested that the pickets were privi- leged by Federal law to remain there, but , upon the offi- cer's direction to move, the pickets moved to the island where they remained for the rest of the day and the fol- lowing day, Saturday , 27 October On Monday, 29 October, two pickets moved back to the property because, Adams explained , there was no way to distribute handbills if they remained on the island. Two other pickets remained on the island- they wore signs but did not carry handbills That afternoon, Zimmerman took photographs of the picketers and called Adams "fat boy," "son of a bitch ," and "Mafia " He threatened the pickets , stating "We've got the heavyweights too We can bring them out if that's what you all want. . . . All of you son -of-a-bitches are going to jail " At about 2 : 15 p m , a police officer arrived, went into the market , and exited with Zimmerman , Painter, and Painter, Jr The officer told Adams that the pickets were obstructing the Supermarket 's business and that the Supermarket's owners were giving the pickets a designat- ed area, which either he or Zimmerman marked in chalk, in which to stand Adams described the area as a five foot square, on the right side of the Supermarket adjoin- ing the post office, as far away from the entrance to the Supermarket as was possible and still be on the front side of the buildings The pickets were advised that a custom- er would have to ask for handbills in that designated area and that the pickets could not pass out handbills to cus- tomers who were in their cars and could not go onto the parking lot The officer stated that , if they left the desig- nated area or were found outside that area, they would be arrested for trespassing and would go to jail 6 The pickets moved back to the island and picketed only in that location from late on 29 October until 22 December They distributed their handbills only when a customer parked his car in the lot, returned to the island, and asked a picket for one, a very rare occurrence In December, Adams was advised by the Union 's counsel that "things had been straightened out" and that the pickets should return to picketing on the premises On 22 December , pickets resumed picketing on the Supermar- ket's premises There followed on that day intense har- assment of Adams . Painter took movies of him (even while Adams left the Supermarket to make a telephone 5 I believe that the area was probably larger than a 5-foot square but not as large as Painter testified Adams recalled the area as going from the end of the post office to the first column to the left of that , a length of approximately 15 feet I find that more accurate 6 According to Adams, the threat applied even if the pickets were to return to the island The Union's present organizing director James Hepner, however, testified only that , when the officer was asked whether the Union had the option of returning to the island , the officer stated that he did not wish to discuss it THRIFTWAY SUPERMARKET call), blocked his path, followed him closely, sometimes brushed Adams with his body and movie camera, tripped him, pulled down his eyeglasses, and made rude and often threatening remarks ("What are you doing, fat boy9" "You are going to get in trouble, fat boy " "You had better not give out any more of them damn hand- bills." When Painter pulled down Adams' eyeglasses and Adams protested, Painter asked Adams what he was going to do about it), and ripped a corner of Adams' picket sign and then pulled it off Adams' neck, adding- "You are going down, fat boy, [y]ou are going down this time " On 24 December 1984, based on Painter's sworn'state- ments, warrants of arrest were issued by the General District Court, Roanoke County, against pickets Donald Bittner and Tommy David, charging that each on that day "did unlawfully in violation of Section 40 1-53, Code of Virginia obstruct or interfere with free ingress or egress to and from the premises of Thriftway Super- market, Williamson Rd, Roanoke, Va "7 Since 24 De- cember, the Union has not picketed on the premises of the Supermarket. After a hearing on 25 February 1985, Bittner was found not guilty and the charge was dis- missed; but David was fined and ordered jailed for 10 days, the court finding "hearing enough evidence to con- vict court takes under advisement [defendant] not to go upon Thriftway property-if no further problem in- volves this [defendant] case will be dismissed on 8/22/85 "8 The couit's order was based, in part, upon evidence of a Thriftway customer that the picketers had blocked his way into the store The customer did not testify in this proceeding, and the two employees denied that they had done anything wrong. Indeed, they testified that, al- though they were standing about a foot or two outside the fire lane, in an area where cars normally pass, the customer intentionally drove his vehicle dangerously close to them; that the customer had ample room to drive through the property without getting close to 7 Sec 40 1-53 reads, as follows Sec 40 1-53 Preventing persons from pursuing lawful vocations, etc , illegal picketing, injunction -No person shall singly or in con- cert with others interfere with another in the exercise of his right to work or to enter upon the performance of any lawful vocation by the use of force, threats of violence or intimidation, or by the use of insulting or threatening language directed toward such person, to induce or attempt to induce him to quit his employment or refrain from seeking employment No person shall engage in picketing by force or violence, or picket alone or in concert with others in such manner as to obstruct or interfere with free ingress or egress to and from any premises, or ob- struct or interfere with free use of public streets, sidewalks or other public ways Any person violating any of the provisions of this section shall be guilty of a misdemeanor, and punished accordingly Notwithstanding the punishments herein provided any court of general equity jurisdiction may enjoin picketing prohibited by this section, and in addition thereto, may enjoin any picketing or interfer- ence with lawful picketing when necessary to prevent disorder, re- strain coercion, protect life or property, or promote the general wel- fare (Code 1950 (Rep] Vol 1953), Sec 40-64, 1952, c 674, 1970, c 321, 1974, c 254 ) All parties agree that, although no finding of guilt was made by the court, the effect of the court's taking the matter "under advisement" con- stituted such a finding, but suspended imposition of the sentence 177 them, and that they did not block the customer's path in any manner. Respondent does not contest the legitimacy of the Union's protest, which was aimed at publicizing Re- spondent's alleged unfair labor practices,9 at least as found by Judge Wolfe; and the Union's action, as the pu- tative bargaining representative of Respondent's employ- ees, is clearly protected under Section 7 of the Act Mastro Plastics Corp v. NLRB, 350 U.S. 270, 278 (1956) 10 What is at issue is where the Union may legally publicize its dispute. As the Board stated in Giant Food Markets, 241 NLRB 721, 728 (1979), remanded 633 F.2d 18 (6th Cir 1980). . . [t]he protected nature of a general form of picketing does not necessarily clothe the pickets with a right to infringe upon the private property rights of others In Hudgens v. N.L.R B,6 the Su- preme Court held that any rights which pickets might be afforded to engage in such activity on pri- vate property do not emanate from the first amend- ment of the Constitution, but rather have as their source the National Labor Relations Act It further counseled that the Board, in determining the extent of such rights, should accommodate the Section 7 rights and private property rights "with as little de- struction of one as is consistent with the mainte- nance of the other "7 This approach was prescribed by the Court in Babcock & Wilcox, supra, and Cen- tral Hardware Company v. N.L.R B ,8 both dealing with union organizing by nonemployees on private property, and was also applied to the primary pick- eting in support of an economic strike involved in Hudgens Although the picketing here is dissimilar in purpose to either the organizational activity in- volved in Babcock, or the primary economic picket- ing by the employer's employees in Hudgens, the Board's role is the same-to accommodate the Sec- tion 7 rights of the pickets with the private proper- ty rights of the Employer.9 However, as the Court pointed out in Hudgens, the "locus" of the accom- modation 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 con- text " 6 424 U S 507 (1976) 7 Citing N L R B v Babcock & Wilcox Company, 351 U S 105, 112 (1965) 8 407 U S 539 (1972) 9 In Milk Wagon Drivers Union v Meadowmoor Dairies, 312 U S 287, 293, the Supreme Court observed "Peaceful picketing is the working- man's means of communication " 10 Picketing to protest unfair labor practices is not proscribed recogm- tional or organizational picketing See, for example, Mission Valley Inn, 140 NLRB 433 (1963) In Seattle-First National Bank, 243 NLRB 898 (1979), remanded in part 651 F 2d 1272 (9th Cir 1980), on remand 258 NLRB 1222 (1981), the Board sustained picketing on private property in support of an economic strike The Board's recent decision, 276 NLRB 1450 (1985), adopted the judge's recommendation that a bargaining order issue 178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD s See Sears Roebuck & Co v San Diego County District Council o f Carpenters, 436 U S 180 (1978) In Giant Food, the Board found it necessary, in order to determine where the protected activity might take place, to analyze and weigh the following. (1) for whose bene- fit the picketing and leafletting is intended, (2) the in- tended audience of the pickets; (3) the likelihood of a union's picketing enmeshing neutral employers in its dis- pute with a particular store in a shopping center, and (4) the openness of the property to the public In Giant Food, the union was engaged in area stand- ards picketing which, the Board stated, was arguably not for the benefit of the employer's employees, but for the benefit and protection of complete strangers to this em- ployment relationship. But it also stated that "area stand- ards picketing is a protected Section 7 right and is for the protection of `employees' represented by the union." 241 NLRB at 728 It found that the employees whom the picketing was intended to benefit were not as important as the "fact that the employer being picketed is the em- ployer with whom the union has the dispute " Id There can be no question that, here, Respondent is the employer with whom the Union has a dispute Respond- ent has now been found by the Board to have committed unfair labor practices of such import that it adopted the administrative law judge's recommendation of a bargain- ing order. If the Union's picketing and handbilling had been successful, Respondent might have agreed to the terms of the recommended order which inured to the benefit of Respondent's employees In any event, this being a primary dispute involving the alleged commis- sion of unfair labor practices, Respondent's store is "where the [U]nion can reasonably expect its picketing and handbilling to have the most impact." Id. The audience which the pickets and handbillers intend- ed to reach with their message "consists of the potential customers of [Thriftway] who become readily identifia- ble only when they decide to enter the store " Id. Giant Food involved a shopping center, and the Board's finding was bolstered by the fact that customers of other stores in the center might become customers of the supermar- ket only on impulse when they see an advertisement in the window Here, Thriftway was the sole store on the property, but the rationale of Giant Food is equally appli- cable The Board there noted that Babcock & Wilcox and other cases involved organizational solicitation, where the audience-the employees to be organized-was spe- cific and the use of mail, telephone, and personal contact might afford a reasonable alternative access to that audi- ence, rather than permitting direct entry onto an employ- er's property. But, in Giant Food, 241 NLRB at 729, the Board found that. . . where, as here, the intended audience is not readily identifiable until the audience attempts to enter the store, such other means of communication cannot be considered "reasonable" in relation to their possible effectiveness [Footnote omitted ] Adams testified that the cost of television, radio, and newspaper advertisements was prohibitive, television ad- vertisements alone costing $1500 per minute Besides, the intent of the leafletting was not to "reach the whole Ro- anoke Valley," but the people who shopped at Thriftway 11 The intent was also to have direct contact with the consumers As the Sixth Circuit found in Giant Food, 633 F.2d at 24-25, the . . . pickets must be allowed a reasonable means of communicating with consumers. When the con- sumers potentially come from a large metropolitan area and cannot be categorized as a specific group patronizing a specific type of store, expensive, ex- tensive mass media or mailer campaigns should not be required If reasonableness is a criterion for de- termining whether or not an alternative means of communication exists, the union should not be forced to incur exorbitant or even heavy expenses A mass media campaign would also diffuse the ef- 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 That personal contact is not insignificant. The Supreme Court recognized in Hughes v Superior Court, 339 U S. 460, 465 (1950), that Publication in a newspaper, or by distribution of circulars, may convey the same information or make the same charge as do those patrolling a picket line But the very purpose of the picket line is to exert influences, and it produces consequences, different from other modes of communication The loyalties and responses worked and exacted by picket lines are unlike those flowing from appeals by printed word Respondent gave the union pickets and handbillers two options to remain in a small area far removed from the main entrance to the store or to vacate themselves from any part of Respondent's premises Neither, I find, were viable alternatives. Although it may be argued that the picket signs gave the customers some insight of what the Union was complaining about and what it wanted the customers to do, it was the handbill which more fully set forth the Union's position, including its advice that an administrative law judge had found Respondent in violation of the Act and had ordered it to correct its violation and that Respondent had done nothing for 4 years By permitting the Union access to only the small area, Respondent sought to limit the visibility of the picket signs, prohibit the distribution of leaflets except to only those few who passed by that area, and inhibit the discussion by the pickets with the customers of the nature of the dispute. 12 The alternative of the pickets' 11 The Roanoke Standard Metropolitan Statistical Area, which in- cludes Roanoke City, Roanoke County, Salem City, Botetourt County, and Craig County, had a population of 224,548 as of 1 January 1980 12 Most of the Supermarket's customers parked in the area nearest the entrance doors and away from the area designated by Respondent for the Union to picket THRIFTWAY SUPERMARKET 179 standing only on state property, some 75-100 feet re- moved from the Supermarket's doors, would similarly dilute the Union's capacity to spread its message. As found by the Board in Giant Food, "motorists entering the parking lot from the adjoining public road would be more concerned with safely making their entrance than with reading a picket sign or attempting to receive a handbill at the roadside." 241 NLRB at 729. Indeed, Adams testified that the Union gave up any attempt to distribute the handbills because it was unfruitful 18 When the Union patrolled the front of the store and pickets handed out leaflets in the parking lots, Adams alone dis- tributed 100 handbills in a morning. Turning to the two other factors relied on by the Board in Giant Food, I find that, because there are no other employers on the Store's property, there are no other employers who could be enmeshed in the Union's picketing and leafletting. In addition, there is no question that Respondent's property is held open to the public, and that the public is invited onto the property. Re- spondent has permitted others to use the same areas where it does not want pickets. Thus, it has had a trailer selling hotdogs and sodas about 5 to 6 times a year and has also permitted bake sales to be conducted in front of the Supermarket 14 As in Giant Food. "Surely, in the ab- sence of picket signs and handbills, these same individ- uals would be welcome on the site during business hours as potential customers " Id. Unlike Giant Food, however, where there was "no evidence of violence or of interfer- ence with ingress or egress," id., here, the General Dis- trict Court found "enough evidence to convict" David of a violation of Virginia law However, in that court, no transcript is made of a hearing nor is a hearing record- ed.15 In this circumstance, it is impossible to ascertain the basis of the court's disposition which does not, in any event, appear to constitute a final judgment and would not be entitled to the effect of res judicata See, general- ly, 1 B Moore, Federal Practice, Par 0.409.16 Based on the evidence in this proceeding alone, there is little, if any, basis to find any interference with egress or ingress. At best, although the pickets may have stood slightly out- side the fire lane, there was ample room for cars to pass and no blocking of ingress or egress. Indeed, based on the testimony of David and Bittner, the driver of the automobile deliberately drove close to both pickets In sum, balancing the foregoing factors weighing in favor of the right to picket in front of the Supermarket against the reasons for prohibiting such picketing, pursu- ant to the Babcock & Wilcox criteria, I conclude that Respondent's property rights must yield to the pickets' Section 7 rights 11 Adams stated that the entrance is a very congested area as is the surrounding area, which is primarily commercial Handbilling would have backed up traffic on the main road and might have caused an acci- dent 14 Painter testified that the hotdog sales are "promotional" and thus benefit the store Painter did not comment on the bake sales 1s If a party wishes to appeal, he is granted a trial de novo 16 It may well be that David has complied with the direction of the court and remained away from the Supermarket, as he had up to the time of the hearing in this proceeding If so, pursuant to the court's disposi- tion, the criminal case may have been dismissed on 22 August 1985 I find it without doubt that Respondent interfered with those rights by physically blocking Adams, assaulting and tripping him and pulling and tearing his picket sign, and by confining the picketing to a specified area or al- ternatively demanding that the pickets leave the prem- ises . I also find that Respondent's threats to call the police and threats of arrest and the subsequent institution of criminal proceedings against Brttner violated Section 8(a)(1) of the Act See, e.g., Villa Avila, 253 NLRB 76 (1981), enfd 673 F 2d 281 (9th Cir 1982); Montgomery Ward Co., 263 NLRB 233 (1983), modified 728 F 2d 389 (6th Cir. 1984). The activities of Respondent, as set forth above, occurring in connection with the operations of Respondent described in footnote 2 above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. For the reasons set forth below, however, I find no violation regarding the institution of criminal proceedings against David and will dismiss that allegation of the complaint THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act, I shall recommend that it cease and desist there- from and take certain affirmative action designed to ef- fectuate the policies of the Act. Both General Counsel and the Charging Party also seek an order requiring Re- spondent to "[m]ove to withdraw the criminal action ini- tiated . against picketer Tommy Lewis David for his activity in handbilling and picketing at the [Supermarket] on 24 December 1984."17 I will not recommend the re- quested relief It is true that similar relief has been grant- ed by the Board in the past Baptist Memorial Hospital, 229 NLRB 45, 46 (1977), Medical Center Hospitals, 244 NLRB 742, 745 (1979), Clark Manor Nursing Home Corp., 254 NLRB 455, 479 (1981), modified 671 F 2d 657 (1st Cir 1982) It is also true that the Board has the power under Section 8(b)(1)(A) of the Act to limit pick- eting so as to ensure ingress and egress from property and that Respondent invoked the Board's jurisdiction by filing an unfair labor practice charge (Case 5-CB-4944) which sought that very relief 18 However, Respondent also filed the criminal charge, and the court rejected the Union's preemption argument" and found enough evi- dence to convict Although I have earlier refused, for the purposes of my findings of violations of the Act herein, to be bound by the conclusion of the same court, I similarly reject the notion that I should not take into account the fact that the court heard sufficient evidence that warranted it to find a violation In Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983), the Supreme Court held that a civil lawsuit 14 If the criminal case has been dismissed, see fn 16 above, this request may be moot ie The charge was dismissed by the Regional Director on 9 April 1985, and Respondent's appeal to the Office of Appeals was denied on 8 May 1985 19 The Board did not intervene in the criminal proceeding brought against either David or Bittner 180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD brought to retaliate against the exercise of Section 7 rights may not be enjoined unless it lacks a reasonable basis in fact or law There, the Court (at 741) "recog- nized that the right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances" and the Court "construed the Act as not pre-empting the States from providing a civil remedy for conduct touching interests `deeply rooted in local feeling and responsibility.' San Diego Building Trades Council v. Garmon, 359 U S 236, 244, 79 S Ct 773, 3 L Ed 2d 775 (1959) " Respondent did not pursue a civil remedy here and did not complain of"civil or criminal trespass 20 Rather, Re- spondent complained that the pickets blocked ingress and egress to the Supermarket, which state courts have indi- cated may be enjoined in the exercise of their police powers and have not found to be preempted by the Act For example, see People v. Bush, 39 N.Y. 2d 529 (1976), and particularly the dissent, which agreed that a charge of disorderly conduct for blocking ingress and egress was not preempted. If a picket engages in violence, it cannot be cogently argued that the sole remedy is vested in the Board and that a criminal court is without power to punish the wrongdoer. So, too, the punishment of a picket who interferes with ingress and egress in violation of a state criminal statute is not preempted by the Act Finally, even if Bill Johnson's Restaurants applied to the criminal complaint against David, the court found suffi- cient basis in fact and law to sustain the criminal com- plaint.21 Even though I will not recommend that all the relief requested by General Counsel and the Union be granted, the relief which I will recommend should ensure to the Union its right to picket on the Supermarket's property without the fear that pickets will be arrested for trespass, unless they engage in conduct which the State has other- wise prohibited in its criminal laws and pursuant to its inherent police powers On these findings of fact and conclusions of law and on the entire record herein'22 including my consideration of the briefs filed by General Counsel, Respondent, and the Union, and my observation of the demeanor of the witnesses as they testified, I issue the following recom- mended23 ORDER Respondent Granco, Inc , d/b/a Thriftway Supermar- ket, Blantom Corporation, d/b/a Thriftway Supermar- 20 Because trespass was never complained of, almost all the authorities relied on by General Counsel and the Charging Party are inapposite 21 From the evidence presented in this proceeding, I find that Bittner was not in a location where he might have interfered with egress and ingress His criminal case was dismissed There is some indication that David, however, was in the area of the front door of the Supermarket, although, on the basis solely of the instant record, David was not affirma- tively shown to have interfered with anybody 22 General Counsel moved in its brief to amend the official transcript in one respect There being no opposition, the motion is granted and the transcript is amended accordingly 23 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 ket, and Bland A. Painter , Jr. d/b/a Thrtftway Super- market, a single employer, its officers , agents, successors, and assigns, shall 1 Cease and desist from (a) Demanding that representatives of United Food and Commercial Workers Union, Local 278, UFCW International Union, AFL-CIO, CLC, who are engaged in peaceful , protected handbilling and picketing, leave the area outside its store located at 7511 Williamson Road, Roanoke, Virginia (b) Threatening union representatives with arrest for failing to accede to demands that they leave the area out- side the said store (c) Demanding or causing the local police authorities to demand that union representatives confine the situs of their handbilling and picketing outside the said store to an area from which access to the store 's customers is in- effectual (d) Threatening or causing local police authorities to threaten union representatives with arrest for failure to comply with demands that they confine the situs of their picketing and handbillmg outside the said store to an area from which access to customers would be ineffectu- al (e) Interfering with peaceful, protected handbilling and picketing by physically blocking the path of union repre- sentatives engaged in such activity through any means including, but not limited to, tripping, touching, or bumping (f) Interfering with peaceful, protected handbilling and picketing by union representatives by confiscating or rip- ping picket signs. (g) Causing criminal summons to issue against union representatives engaged in peaceful protected handbilling and picketing outside of the said store so long as said union representatives may not reasonably be found to have blocked egress or ingress to the store (h) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act. (a) Afford union representatives with access to the outside of the said store for the purpose of engaging in peaceful, protected handbilling and picketing, publicizing the finding of unfair labor practices, so long as that ac- tivity is conducted by a reasonable number of persons (b) Post at its stores located at 7511 Williamson Road and Grandin Road in Roanoke, Virginia, and Route 11, Troutville, Virginia, copies of the attached notice marked "Appendix "24 Copies of said notice, on forms provided by the Regional Director of Region 5, after being signed by Respondent's authorized representative, shall be posted by Respondent immediately on receipt and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees 24 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 " THRIFTWAY SUPERMARKET are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order, what steps Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint be dis- missed insofar as it alleges violations of the Act other than those found herein. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT demand that representatives of United Food and Commercial Workers Union, Local 278, UFCW International Union, AFL-CIO, CLC, who are engaged in peaceful, protected handbilling and picketing, leave the area outside our store located at 7511 William- son Road, Roanoke, Virginia. WE WILL NOT threaten union representatives with arrest for failing to accede to demands that they leave the area outside our store. WE WILL NOT demand or cause the local police au- thorities to demand that union representatives confine the situs of their handbilling and picketing outside our store to an area from which access to our customers is ineffectual. WE WILL NOT threaten or cause local police authori- ties to threaten union representatives with arrest for fail- 181 ure to comply with demands that they confine the situs of their picketing and handbilling outside our store to an area from which access to our customers would be inef- fectual. WE WILL NOT interfere with peaceful, protected hand- billing and picketing by physically blocking the path of union representatives engaged in such activity through any means including, but not limited to, tripping, touch- ing, or bumping. WE WILL NOT interfere with peaceful, protected hand- billing and picketing by union representatives by confis- cating or ripping picket signs. WE WILL NOT cause criminal summons to issue against union representatives engaged in peaceful protected handbilling and picketing outside of our store so long as said union representatives may not reasonably be found to have blocked egress or ingress to our store WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed in Section 7 of the National Labor Re- lations Act. WE WILL afford union representatives with access to the outside of our store for the purpose of engaging in peaceful, protected handbilling and picketing, publicizing the finding of unfair labor practices, so long as that ac- tivity is conducted by a reasonable number of persons. GRANCO, INC., D/B/A THRIFTWAY SUPER- MARKET: BLANTOM CORPORATION, D/B/A THRIFTWAY SUPERMARKET; AND BLAND A. PAINTER, JR., D/B/A THRIFTWAY SU- PERMARKET, A SINGLE EMPLOYER