The Red Food Stores, Inc., Premier Investment Properties, Inc., And Corker Development Corp.

450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Red Food Stores, Inc., Premier Investment Properties, Inc., and Corker Development Cor- poration and United Food and Commercial Workers International. Case 10-CA-21677 August 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On December 15, 1986, Administrative Law Judge Lawrence W. Cullen issued the attached de- cision. The General Counsel and the Charging Party filed exceptions and supporting briefs, and the Respondents filed a brief in opposition to the exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions as modified, and to adopt the recom- mended Order. The Respondent Red Food Stores , Inc. operates three grocery stores in the Knoxville, Tennessee area.' The Red Food Store in Knoxville proper is part of a small strip shopping center, consisting of approximately nine other retail establishments, that is owned by Respondent Premier Investment Prop- erties, Inc. The Red Food Store faces Kingston Pike, which is a major four-lane thoroughfare with additional turn lanes. Traveling west on Kingston Pike, a right-hand turn lane of 40-50 feet leads to a private road that becomes the eastern entrance to the store. Continuing along Kingston Pike, the western entrance to the shopping center is reached by turning right from Kingston Pike onto Peters Road; the shopping center entrance, which has a traffic light, is on the right. A parking lot for pa- trons of the shopping center occupies most of the area between the stores and the adjacent thorough- fares. A second Red Food Store is located in Mary- ville, Tennessee, in the center of a strip shopping center that is owned by Respondent Corker Devel- opment Corporation, and contains approximately six other retail establishments. The shopping center is surrounded by a parking lot that is adjacent to a heavily traveled four-lane highway that narrows to two lanes as it approaches the stores . There are no separate turn lanes into the parking lot. A third Red Food Store, which operates under the name "Super Saver," is located in Alcoa, Ten- ' Red Food operates a total of approximately 50 stores in Tennessee, Georgia, and Alabama nessee, a city adjacent to Maryville, in a freestand- ing building that is owned by Red Food. The area in front and to the right of the store is used for parking; the parking area in front of the store ad- joins a four-lane highway. There are no separate turn lanes into the parking area . It is approximately 100 feet from the highway to the front of the store. Red Food, whose employees are not unionized, was acquired by a French corporation , Promodes S.A., in 1980. On March 27, 1986,2 the Union began to picket and handbill at the three Red Food Stores described above . 3 Six pickets were stationed at each store, and the picketing and handbilling were conducted in the parking lots and on the side- walks adjoining the storefronts where Red Food and Super Saver displayed various items for sale.4 The pickets carried signs stating that Red Food and Super Saver were "unfair" and that they paid "benefits and wages which are inferior to benefits and wages paid to union employees in the area." The signs also stated, "We are not asking any em- ployees to honor this line," and included the name of the Union. Additionally, during the first days of the picketing, the pickets carried signs informing the public that Red Food was foreign owned. Each of these subjects-wages, benefits, and for- eign ownership-was addressed in the handbills distributed by the pickets throughout the course of the Union's activities. The handbills, which con- tained a picture of comedian Vicki Lawrence as "Mama," read as follows: 1 PARLEZ-VOUS "UNEMPLOYMENT"? Take a lesson in foreign affairs from Mama. Mama says : "Listen, lamebrains, we've got a problem. It's foreign-owned stores. We've got enough trouble with imports taking jobs away from American workers. . We don't need to import supermarkets, too. Especially when those stores could cause our neighbors working at other supermarkets here in the Knoxville area to lose their jobs. Re- member that the next time you think about shopping at foreign-owned Red Food/Super Saver." Don't be fooled. Red Food/Super Saver pay benefits and wages which are inferior to bene- fits and wages paid to union employees in the area. 2 All dates are in 1986 unless otherwise indicated. a At approximately the same time, the Union commenced a similar campaign against the Food Lion grocery chain. Like Red Food, Food Lion is foreign owned and its employees are not unionized. 4 The Red Food Stores permitted various civic and commercial organi- zations to place advertisements on store windows and on the inside bulle- tin boards. 296 NLRB No. 62 RED FOOD STORES 451 LISTEN TO MAMA. BE AMERICAN. SHOP AMERICAN. DON'T SHOP AT RED FOOD/SUPER SAVER. During this period of time the Union also publi- cized its "Be American. Shop American" campaign through several television and radio commercials in the Knoxville area. Specifically, from March 26 through April 15, the Union advertised in a total of 166 30-second spots on 2 Knoxville television sta- tions and 4 Knoxville radio stations , at a total cost of $22,420. The commercials featured Vicki Law- rence urging customers not to shop at foreign- owned "supermarkets." No specific stores were named, although French names and phrases ap- peared throughout some of the messages.5 On March 27, the day the Union began picketing the Red Food Stores, representatives of Red Food at each of the three stores asked the pickets to leave and threatened to take legal action if they did not do so. The pickets, however, refused to move from the parking lots and sidewalks adjoining the storefronts, and the following day the Respondents obtained injunctive relief against the Union in state court. Thereafter, the Union conducted its activity at the perimeters of the three Red Food Stores until June 16.6 There are no sidewalks on the perimeter of the Knoxville and Maryville stores; the Union picketed on the grassy areas separating the parking lots from the adjoining thoroughfares.7 At the Alcoa store, the Union picketed on the public sidewalk adjacent to the parking lot.8 Union International Representative Dan Eaker, who was involved in organizing the Union 's activi- ties at the Red Food Stores, testified that the pe- rimeter picketing was less effective than picketing near the customer doors . Specifically, Eaker testi- fied that the Union could not effectively handbill at the perimeter entrances to the parking lots because virtually all customers entered the lots by car, and the police had threatened arrest if traffic were ob- structed. Eaker also testified that it was difficult to talk to customers from the perimeters of the stores because of the noise from the highways . He further stated that from the perimeters of the Knoxville and Maryville strip center stores, customers of Red Food could not be readily distinguished from cus- tomers of the other shops. 8 The judge erroneously found that the commercials specifically men- tioned the Red Food Stores by name. 8 After Food Lion obtained injunctive relief against the Union, all picketing and handbilling at the Food Lion stores ceased. 7 At the Knoxville store, the perimeter picketing occurred along Peters Road as well as below an embankment along the more heavily trafficked Kingston Pike. 8 The Union employed a total of 15 to 20 pickets at $4 per hour for 40 hours per week. The judge analyzed the access issue here under Fairmont Hotel, 282 NLRB 139 (1986), which issued after the hearing in the instant case. The judge initially found that the Union's picketing and handbilling activities were organizational in nature. He based his finding on the General Counsel's fail- ure to demonstrate that the Union had undertaken any investigation to determine if the Red Food Stores paid substandard wages and benefits , noting that there was, in fact, evidence to the contrary.9 The judge also inferred an organizational purpose from the lack of evidence of a "coordinated ongo- ing national campaign" conducted by the Union against foreign-owned supermarkets generally. In this regard, he found that the Union 's campaign was limited to the Knoxville area and appeared to be directed only at foreign-owned stores that were not unionized.10 Further characterizing the Union's message against foreign ownership as an appeal to "nativistic prejudice," the judge found that the Union's effort to encourage consumers to boycott the Red Food Stores because of their foreign own- ership is contrary to public policy and therefore not protected under Section 7 of the Act. 11 More- over, the judge found that the foreign-owned aspect of the Union's campaign was so enmeshed with its overall organizational campaign as to pre- clude any protection under Section 7. Finally, even assuming that the Union's picketing and handbilling activities were protected by Section 7 so as to re- quire a balancing of the rights asserted , the judge found that the Respondents' property rights should prevail based on the public policy considerations mentioned above, the economic harm potential to Red Food, the interest of Respondents Premier and Corker in Red Food's financial stability, and the Union's ability to effectively communicate its mes- sage through the media and from the perimeter. The judge therefore recommended that the com- plaint be dismissed. We affirm the judge's conclu- 8 The judge erroneously found that Red Food's vice president, James Bowen, testified that both wages and benefits at Red Food were higher than those at another grocery store in the area. The record indicates that Bowen, although testifying that Red Food pays higher wages than A & P, simply stated regarding benefits that Red Food has an "excellent" in- surance plan and a "good" pension plan. 10 As further evidence of a lack of an organized national campaign, the judge noted that the Union withdrew from Food Lion immediately after being enjoined from the premises, but continued to picket the Red Food Stores for a period of 3 months after injunctions were obtained. i i In support of this finding the judge cited the Convention of Estab- lishment between France and the United States, 11 US T 2398, which encourages mutual investment by citizens of each country in the country of the other, Title VII of the Civil Rights Act of 1964 , which prohibits discrimination because of national origin; and YKK (U.S.A.). Inc., 269 NLRB 82 (1984), in which the Board set aside a representation election based on, inter alia, appeals to racial and national origin prejudice on matters unrelated to election issues. 452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Sion that the Respondents did not violate the Act, but we do so on the basis of the following analysis. Subsequent to the judge's decision, the Board issued Jean Country, 291 NLRB 11 (1988), in which it reevaluated the analytical approach for re- solving conflicts between Section 7 and private property rights set forth in Fairmont Hotel, above, and clarified that the availability of reasonable al- ternative means is a factor that must be considered in every access case in which a legitimate property interest and a Section 7 right must be accommodat- ed.12 The Board further held: 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 . [Id. at 14.] The Board in Jean Country found that the fol- lowing factors may be relevant to assessing the weight of a property right: the use to which the property is put; the restrictions, if any, that are im- posed on public access to the property; and the property's relative size and openness . The factors that may be relevant to the consideration of a Sec- tion 7 right include: the nature of the right; the identity of the employer to which the right is di- rectly related (e.g., the employer with whom a union has a primary dispute); the relationship of the employer or other target to the property to which access is sought; the identity of the audience to which the communications concerning the Sec- tion 7 right are directed; and the manner in which the activity related to that right is carried out. Fi- nally, factors that may be relevant to the assess- ment of alternative means include : the desirability of avoiding the enmeshment of neutrals in labor disputes; the safety of attempting communications at alternative public sites; the burden and expense of nontrespassory communication alternatives; and the extent to which exclusive use of the nontrespas- sory alternatives would dilute the effectiveness of the message. 12 In reaching this conclusion the Board emphasized that , under the Supreme Court's decision in NLRB Y. Babcock & Wilcox Co., 351 U.S. 105 (1956), and Hudgens v. NLRB, 424 U.S 507 (1976), the Board is "charged with seeking to avoid the 'destruction' of [Sec 7 and property] rights, if at all possible, and with permitting infringements on one right only to the extent necessary to maintain the other " Jean Country, supra at 12-13 Applying the Jean Country analysis to this case, we initially find regarding the nature of the Re- spondents' property interests that Respondent Red Food owns the Alcoa store and the land on which it is located. Respondent Red Food also has lease- hold interests in the Knoxville and Maryville stores, and the shopping centers in which these stores are located are owned by Respondents Pre- mier and Corker, respectively. We therefore find that the Respondents' conduct with respect to the union pickets was based on legitimate property in- terests.13 Regarding the factors relevant to assessing the weight of the Respondents' property rights, we note that all the stores are open to the public with- out substantial limitation . Access to the parking lots adjacent to the stores is not restricted and the lots are not enclosed by fences or other barriers. The fact that the Respondents permit various orga- nizations to advertise on store windows and bulle- tin boards does not significantly diminish the strength of the property rights asserted. Although there are differences in the relative strengths of the freestanding and strip shopping center stores, we find that the Respondents' property rights at each of the locations are not insubstantial . See Mountain Country Food Store, 292 NLRB 967, 968-969 (1989). Next, examining the nature of the Union's con- duct, we note that the language on the Union's picket signs communicated an area standards objec- tive. Further, the Union publicized its simultaneous "Be American. Shop American" campaign on picket signs, in handbills, and in the media as an in- formational protest directed at customers of the Red Food Stores. Area standards activity, a form of consumer pub- licity, is protected by Section 7 because a union has a legitimate interest in protecting the wage stand- ards of its members who are employed by competi- tors of a picketed employer. Area standards picket- ing is, however, protected to a lesser extent than activity that furthers a "core" purpose of the Act. See Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 207 fn. 42 (1978). Assuming without deciding that the Union's conduct in this case is protected 13 The General Counsel contends that on March 27 Respondent Red Food acted in conjunction with Respondents Corker and Premier in asking the pickets to move from the parking lots and storefront side- walks. On the other hand, the Respondents contend that although Corker and Premier joined Red Food in petitioning the state court for injunctive relief against the Union, the only demand to leave the Respondents' prop- erty was made by Red Food . Although not addressed by the judge, in view of our disposition of the case we find it unnecessary to reach issues regarding any separate liability of the Respondents. RED FOOD STORES 453 area standards/informational activity, 14 we find that the right asserted falls at a relatively weak point along the continuum of possible activities protected by Section 7. Next to be addressed is the availability of reason- able effective alternative means of communication. Considering the Union 's conduct as having an area standards/informational objective, we find that its target audience was primarily the customers of the Knoxville, Maryville, and Alcoa Red Food Stores. For the reasons set forth below, we find that the General Counsel has not demonstrated that the al- ternatives employed by the Union-picketing and handbilling on the public property at the perim- eters of the stores and advertising through the media-were not effective alternatives. First, we note that the Union picketed and hand- billed at the perimeters of the stores for approxi- mately 3 months. The pickets covered the entire lengths of the stores' perimeters, including the areas near the driveway entrances to the stores. Regarding the Union's contention that it could not effectively handbill from the perimeters, we note that the Union's picket signs addressed the same subjects as the handbills-wages, benefits, and for- eign ownership. The essential message-the request not to patronize-is readily conveyed by pickets. Further, there is no evidence that customers were unable to read the picket signs either from the Re- spondents' private property or as they entered and exited the stores' parking lots . 15 There is also no evidence that picketing at the perimeter presented appreciable safety risks. Additionally, with respect to the Knoxville and Maryville strip center stores, we find that the pe- rimeter picketing presented no substantial risk of dilution of the Union's message or of enmeshing neutrals. In this regard, the strip shopping centers here are distinguishable from the mall in Jean Country in terms of, inter alia, shorter distances from the parking lot entrances to the picketed em- ployer and fewer stores and customers on the premises. See Jean Country, above at 16. Moreover, during the same period as the Union's picketing and handbilling, the subject of foreign ownership of grocery stores was given further ex- posure through the Union's extensive media cam- 14 In light of our analysis as well as our conclusion that the Respond- ents' conduct at the three stores did not violate the Act , we find it unnec- essary to pass on the judge's findings regarding the object and character of the Union's activity 15 We note that the General Counsel 's only contention regarding the embankment on the Kingston Pike perimeter at the Knoxville store was that it hindered the pickets' ability to see the Red Food Store, and not that the embankment prevented customers of Red Food from reading the picket signs Moreover, as found above, the Union also picketed that store along the Peters Road perimeter where there was no embankment. paign, consisting of a total of 166 30-second spots on 2 local television stations and 4 local radio sta- tions. In this case the General Counsel contends that the commercials were not reasonable alterna- tives to picketing and handbilling on the Respond- ents' property because they were "generic" and did not mention Red Food by name. We note that the Board in Jean Country, above at 12, stated that only in "exceptional" cases will the use of newspa- per, radio, and television be feasible alternatives to direct contact. Although we would be reluctant to impose the cost of a media campaign on a union, the Union here in fact utilized a media campaign and the circumstances of this case do not persuade us that the commercials here, considered in con- junction with the picketing and handbilling at the perimeters of the stores, were not an effective al- ternative means. In this regard , because the commercials were di- rected at customers of all foreign-owned grocery stores, their target audience included the customers of Red Food. In fact, for those persons familiar with the Union's campaign against Red Food Stores, the commercials would reinforce the Union's message in the context of Red Food (and conversely). Based on the above, we find that the Union's communication of its message from the pe- rimeters of the stores-together with the media campaign that was undertaken by the Union-was a reasonable, effective alternative to entry onto the Respondents' property. Accommodating the private property and Sec- tion 7 rights pursuant to the Board 's analysis in Jean Country, we find that the Union's relatively weak Section 7 right (taking into account the avail- ability of reasonable, effective alternative means of communication) would not be significantly im- paired if access to the Respondents' property were denied. On the other hand, the Respondents' prop- erty interests, which are not insubstantial, would be significantly impaired if access were granted to the Union. Accordingly, as the impairment of the property rights would be greater if access were granted than would be the impairment of the Sec- tion 7 right if access were denied, we conclude that the Respondents did not violate Section 8(a)(1) by prohibiting the Union from picketing and handbill- ing in the parking lots and walkways in front of the stores. Accordingly, we shall dismiss the com- plaint. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. 454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CHAIRMAN STEPHENS, concurring. I agree with my colleagues that the complaint in this case should be dismissed, but I reach that con- clusion on grounds somewhat similar to those on which the judge relied. I would find that the Gen- eral Counsel did not establish that the Union was engaging in activity protected by Section 7 when it was picketing and handbilling on the private prop- erty involved here . Hence there was no Section 7 right to be accommodated under the Jean Country test. It is undisputed that the handbills and picket signs displayed in the Union's appeal carried essen- tially two messages : that Red Food Stores paid lower wages and benefits than those paid to union- represented employees in that area and that Red Food Stores was "foreign-owned." Certainly the area standards message is classifiable as an appeal protected by Section 7 of the Act, and ordinarily that would be enough to establish that a union was exercising a Section 7 right to be accommodated with the property interests of the owner of the land on which the union sought to communicate its appeal. Here, however, as the judge noted, the Union's International representative who organized the picketing and handbilling was the General Counsel's only witness, and he testified that he was unaware what wages and benefits were enjoyed by the employees of Red Food Stores and that he had no idea whether they were comparable to area standards. Furthermore, the Respondents offered testimony, credited by the judge, that Red Food Stores paid higher wage rates than at least one of its area competitors. Although I would not usually look behind the message of union signs or handbills so as to question the existence of a Section 7 right in an access case, the facts elicited in this unusual case warrant a conclusion that the Union was not engaged in genuine area standards picketing.' As to the appeal to boycott Red Food Stores be- cause of its foreign ownership, I need not, like the judge, go so far as to find this protest to be an "appeal to nativistic prejudice" that is against public policy . It is enough that Section 7 does not extend to the protection of appeals against owner- ship of companies by persons of foreign nationali- ties, at least where there is no claim that workers are being discriminated against or otherwise mis- treated or that jobs are being exported.2 The ' In its brief to the Board, the Charging Party Union argues that even if Red Food Stores' wage levels were above area standards, the Union could still make a valid area standards appeal because only through the protection of a collective -bargaining agreement do workers have any "real rights." Whatever the truth of this assertion, it has no basis in any accepted definition of area standards picketing. 8 Of course the "mutual aid and protection" clause of Sec. 7 extends to efforts by employees "to improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the Charging Party argues that its message is protected by the first amendment, and this is undoubtedly true. But where, as here, the question presented is the right of union picketers or handbillers to enter onto privately owned property, the first amend- ment is not at issue . Rather, "the rights and liabil- ities of the parties in this case are dependent exclu- sively upon the National Labor Relations Act." Hudgens v. NLRB, 424 U.S. 507, 521 (1976). I would find that, under the circumstances of this case, the Act gave the Union no right to dissemi- nate its message on the Respondents' property. immediate employer-employee relationship " Eastex, Inc. Y. NLRB, 437 U.S. 556, 565 (1978). But a protest simply against the fact that a company has been acquired by a French corporation seems to me to have so at- tenuated a relationship to employees' interests as employees that it falls outside the ambit of that clause. Id. at 567-568. Richard P. Prowell, Esq., for the General Counsel. Frank P. Pinchak, Esq. (Hutcheson, Moseley, Pinchak & Powers), of Chattanooga, Tennessee, for Respondents Red Food Stores, Inc. and Corker Development. Lewis Hagood and Robert Townsend, Esgs (Arnett, Draper & Hagood), of Knoxville, Tennessee, for Respondent Red Food Stores, Inc. G. Wendell Thomas Jr., Esq. (Kennerly, Montgomery & Finley), of Knoxville, Tennessee, for Respondent Pre- mier Investment Properties, Inc. James G. Stranch III, Esq. (Branstetter, Kilgore, Stranch & Jennings), of Knoxville, Tennessee, for the Charging Party. DECISION STATEMENT OF THE CASE LAWRENCE W. CULLEN, Administrative Law Judge. This case was heard before me in Knoxville, Tennessee, on 15 July 1986. The original charge was filed by United Food and Commercial Workers International (the Charg- ing Party or the Union) on 8 April 1986 against The Red Food Stores, Inc. (Red Food), Premier Investment Prop- erties (Premier), and Corker Development Corporation (Corker), and the complaint was issued by the Regional Director for Region 10 of the National Labor Relations Board (the Board) in this case on 15 May 1986, and al- leged that Respondents Red Food, Premier, and Corker had violated Section 8(a)(1) of the National Labor Rela- tions Act (the Act), by since on or about 27 March 1986 prohibiting the Union from picketing and handbilling in the public parking lots and walkways in the front of Red Food facilities, thus precluding the Union from any rea- sonable and/or safe alternative method by which it could communicate its message to employees, customers, and suppliers of Red Food. The picket signs are alleged in the complaint to have stated," ' There was evidence at the hearing that certain of the signs have this language and other signs used on the first days of the picketing referred to Red Food foreign ownership. RED FOOD STORES RED FOOD [or SUPERSAVER] UNFAIR Pays benefits and Wages Which are inferior to ben- efits and wages paid to union employees in the area We are not asking any employees to honor this line. United Food & Commercial Workers International Union-AFL-CIO, CLC The leaflets alleged to have been passed out by the Union contained a picture of comedienne Vicki Law- rence and read as follows: PARLEZ-VOUS "UNEMPLOYMENT"? Take a lesson in foreign affairs from Mama. Mama says : "Listen, lamebrains, we've got a problem. It's foreign-owned stores. We've got enough trouble with imports taking jobs away from American workers. We don't need to import supermarkets, too. Espe- cially when those stores could cause our neighbors working at other supermarkets here in the Knox- ville area to lose their jobs . Remember that the next time you think about shopping at foreign-owned Red Food/Super Saver." Don't be fooled. Red Food/Super Saver pay bene- fits and wages which are inferior to benefits and wages paid to union employees in the area. Listen to Mama. Be American. Shop American. Don't Shop at Red Food/Super Saver. Respondents Red Food and Corker filed a joint answer to the complaint on 28 May 1986 and Respondent Pre- mier filed its answer to the complaint on 28 May 1986. The answers deny the commission of any violations of the Act. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the closing argument and supplemental brief submitted by the General Counsel and briefs submitted by the Charging Party and the Respondents, I make the follow- ing FINDINGS OF FACTS I. JURISDICTION The complaint alleges, the Respondents admitted indi- vidually on their own behalf, and I find the following. Respondent Red Food is a Delaware corporation en- gaged in the retail sale of groceries at facilities leased from Respondent Premier in the vicinity of Knoxville, Tennessee, and Respondent Corker in the vicinity of Maryville, Tennessee, and at its own facility in the vicin- ity of Alcoa, Tennessee. During the past calendar year prior to the filing of the complaint, a representative period, Red Food received gross revenues in excess of $500,000 and purchased and received at its Tennessee fa- 2 The findings of fact include a composite of the testimony of the wit- nesses, admitted exhibits, and admissions made by the Respondents. 455 cilities goods valued in excess of $50,000 directly from suppliers located outside the State of Tennessee. Respondent Premier is a Tennessee corporation en- gaged in leasing real estate in the vicinity of Knoxville, Tennessee, and at all times material herein has leased retail facilities in its shopping mall in the vicinity of Knoxville, Tennessee, to various businesses including Re- spondent Red Food. During the past calendar year prior to the filing of the complaint, a representative period, Premier received gross revenues in excess of $100,000 of which in excess of $25,000 was derived from Red Food. Respondent Corker is a Tennessee corporation en- gaged in the leasing of real estate in the vicinity of Mar- yville, Tennessee, and at all times material herein has leased retail facilities in its mall in the vicinity of Mary- ville, Tennessee, to various businesses including Red Food. During the past calendar year prior to the filing of the complaint, a representative period, Corker received gross revenues in excess of $100,000 of which in excess of $25,000 was derived from Red Food. Respondents Red Food, Premier, and Corker are, and have been at all times material herein, each an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION The complaint alleges, the Respondents admit, and I find, that United Food and Commercial Workers Inter- national is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES On 27 March 1986, the Union commenced a campaign against Red Food and another grocery chain entitled Food Lion. The campaign against Red Food entailed the hiring of persons to picket on the premises of the Re- spondents at the three stores as set out above with the two signs as set out above, one of which expressed that Red Food paid lower wages and benefits than those pre- vailing in the area and the other of which informed the public that Red Food was foreign owned . The picketers also handed out leaflets to customers of Red Food as set out above urging them not to shop at Red Food/Super because they are foreign owned . Super Saver is a Red Food store operating under the name of Super Saver in a freestanding building owned by Red Food in Alcoa, Tennessee. The Red Food and Food Lion stores were foreign owned and the Union did not represent the em- ployees of either employer. Red Food is a Delaware cor- poration acquired by Promodes S.A., a French corpora- tion in 1980. Additionally, the Union conducted a televi- sion and radio advertisement campaign utilizing the "Mama" commercials with Vicki Lawrence urging con- sumers not to shop at Red Food stores because they are foreign owned and its message was seen or heard exten- sively at a media cost of over $22 ,000 to the Union. It is undisputed that Respondent Red Food asked the picket- ers to leave its property and that Red Food, Premier, and Corker obtained injunctive relief in state court to prevent the Union from further picketing on Respond- 456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ents' premises thus giving rise to the charge by the Union and the issuance of the complaint. The picketing of Red Food's three stores by the Union on public right of way continued until 16 June 1986. The General Counsel and the Charging Party contend that the Union was merely engaging in area standards picketing and thus should be accorded the right to picket on the Employers' premises in order to permit them to advise the public of the alleged lower wages and benefits paid by Red Food in the prevailing area relying on Giant Food Markets v. NLRB, 633 F.2d 18 (6th Cir. 1980). The Respondents contend that the Union was engaged in or- ganizational picketing rather than area standards picket- ing. In this regard the Respondents contend the Union's interest was protected by permitting it to picket from public roads or right of ways accessible to the stores. The Respondents also contend that neither Board law nor public policy support the right of the Union to enter their property for the purpose of urging the public to re- frain from shopping at Red Food because it is foreign owned. In support of its case, the General Counsel produced a single witness, Dan Eaker, an international representative and organizer for the Union , who testified that he had been told to picket the Red Food stores and stores owned by Lion Foods, another foreign-owned food store chain. Prior to the obtainment of an injunction by Re- spondents, the pickets carried signs concerning area standards and at least for the first day or two concerning Red Food's foreign ownership and distributed leaflets concerning Red Food's foreign ownership. Eaker ac- knowledged that he had no knowledge as to whether Red Food's wages and benefits were comparable to area wide wages and benefits. He was unaware of what wages and benefits Red Food paid or gave to its employ- ees or what the wages and benefits were paid or given to employees by other retail grocery chains in the area nor had he made any attempt to verify the amount of the wages or benefits paid by Red Food. Eaker also testified that after the union picketers were required to move off of the Respondents' premises, they were required to picket on public roads and right of ways and were unable to safely pass out leaflets to cars which were pull- ing into the malls or parking lots from busy high traffic roads as the cars would not stop to take the leaflets. Al- though he is aware that A & P is a foreign-owned store, A & P was not picketed as there was a union contract for the employees at that store. Eaker acknowledged that he was later told by his supervisor, Joe Price, to with- draw the pickets from Lion Foods but that picketing continued at Red Food stores. Although International Union Representative Price was sitting at the General Counsel's and Charging Party's counsel table throughout the hearing, he was not called to testify. The Respondents called James Bowen, a vice presi- dent of Red Food , who testified concerning the wages and benefits paid by Red Food and compared them with the contract of another store in the area and testified that as compared with this particular contract, Red Food wages and benefits were higher. When the picketing began the picketers carried signs and distributed leaflets at the entrance to the Red Food stores on the sidewalk in front of the stores at the shopping centers, where mer- chandise was on the sidewalks, and also in the parking lots. Discussion In the recent case of Fairmont Hotel, 282 NLRB 139 (1986), the Board reviewed rulings by the Supreme Court considering conflicts between Section 7 rights and property rights . See NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956); Hudgens v. NLRB, 424 U.S. 507 (1976); Central Hardware Co. v. NLRB, 407 U.S. 539 (1972), and Sears, Roebuck & Co. v. San Diego District County Coun- cil of Carpenters, 436 U.S. 180 (1978). See also the Board's decision in Giant Food Markets, 241 NLRB 727 (1979). In Fairmont Hotel, the Board observed that in Babcock the Supreme Court had concluded that employ- ees of the employer were not inaccessible to nonem- ployee union organizers and that the employer was not required to yield its property right to deny union orga- nizers access to its private industrial plant parking lot. In Hudgens, the Court considered picketing by employees of one of their employer's retail stores in an enclosed shopping mall. The Board in Fairmont Hotel, supra at 140, stated that the court in Hudgens had determined "that the rights of the pickets were dependent exclusive- ly upon the Act, and not the first amendment," citing the Court's statement in Hudgens that "under the Act, the task of the Board . . . is to resolve conflicts between Section 7 rights and private property rights," "and to seek a proper accommodation between the two," and "the locus of that accommodation . . . may fall at differ- ing points along the spectrum depending on the nature and strength of the respective Section 7 rights and pri- vate property rights asserted in any given context." The Board also observed in Hudgens that differences in the Section 7 activity involved such considerations as wheth- er employees or nonemployees were involved, and whether the property interests impinged on were those of the employer or of another. In Fairmont Hotel, the Board stated that in the Sears case, the Court had ob- served that in the context of trespassory organizational solicitation by nonemployees, an employer 's right under Babcock to bar union organizers from its property re- mains the general rule ; to gain access, a union bears the "heavy" burden of showing that "no other reasonable means of communicating its organizational message to the employees exists or that the employer's access rules discriminate against union solicitation." The Board further stated in Fairmont Hotel that the "court's decisions in Babcock, Hudgens, and Sears pro- vide firm guidance for the resolution of conflicting claims of property rights and Section 7 rights." In this regard, the Board considered Giant Food Markets (cited by the General Counsel and the Charging Party in this case) wherein the Union had engaged in area standards picketing by nonemployees of Giant and handbilling against Giant in front of the Giant store where Giant shared "subdivided portions of a privately owned build- ing separated by the street by a private parking lot for the use of the customers of the two businesses." After the picketing was enjoined by a temporary restraining RED FOOD STORES 457 order obtained by Giant, another store, and the property owner, the picketers moved to a grassy area outside the property. In the Giant case, the Board held that the in- tended audience, the consumers of Giant, were less easily identifiable than in Babcock & Wilcox (the employees) and found a violation had been committed by the remov- al of the pickets from in front of the Giant store as the Union had not had a reasonable alternative basis. How- ever, the Board in Fairmont Hotel stated that the sugges- tion in Giant that where area standards picketing was in- volved, it would be easier to establish the right to access than in cases of organizing activity "is not a mode of analysis contemplated by the Supreme Court." In this regard, the Board noted that the rights of the parties "will have varying degrees of strength depending on the facts of the particular case ." The Board also observed that, "not every Section 7 right that is asserted will be equally compelling," and factors that may affect the relative strength or weakness of a claim of Section 7 rights include, but are not limited to, the nature of the right asserted, the purpose for which it is being asserted, the em- ployer that is the target of the activity, the situs of the activity, the relationship of the situs to the target, the intended audience of the activity, and, possibly, the manner in which the right is being assert- ed. [Emphasis added.] The Board then declared that it is the Board's task first to weigh the relative strength of each party's claim. If the property owner's claim is a strong one, while the Section 7 right at issue is clearly a less compelling one, the property right will prevail. If the property right is a tenuous one, and the Section 7 right is clearly more compelling, then the Section 7 right will prevail. Only in those cases where the respective claims are rela- tively equal in strength will effective alternative means of communication become determinative, but see Member Stephens' concurring opinion wherein he states he is not ready to embrace an access right's test under which we would be barred from inquiry into the availability of reasonably effective alternative means of communication with the target and audience unless we found that the property rights at issue were of relative equal strength with Section 7 rights implicated in the activity on the affected property. Applying the guidelines of the Supreme Court as ar- ticulated by the Board in the recent Fairmont case and other relevant decision authority which will be herein- after cited, I will proceed to discuss what type of activi- ty was involved. Initially, I find that the picketing and handbilling conducted by the Union was organizational in nature and was not area standards picketing. In so doing, I have considered several factors . The General Counsel did not demonstrate that the wages and benefits paid by Employer Red Food to its employees were below the standards in the area. Rather, the evidence ad- duced from the General Counsel's sole witness was that he made no attempt to determine what the wages or ben- efits paid by Red Food to its employees were . Rather, he picketed as ordered by his supervisor, Price, who, al- though sitting in the courtroom at the General Counsel's table, was not asked to testify in this case. I find that the failure to call Price as a witness warrants the inference that he would not have testified contrary to Eaker con- cerning the lack of investigation to determine whether Red Food paid substandard wages and benefits to its em- ployees. At a minimum, Eaker's testimony stands unre- butted on the record and the General Counsel has thus failed to prove the Union's area standards message was truthful. Moreover, the Respondents introduced the labor contract of at least one competitor in the area which contained wage rates below that paid by Red Food to its employees. The Charging Party's counsel elicited testimony on cross-examination from Red Food's vice president, Bowen, that the wage contracts of an- other competitor of Red Food which accounted for a substantial market share of the area were not presented by Respondent Red Food at the hearing. However, they were also not presented by the General Counsel or the Charging Party . The record as it stands thus shows that the Union proceeded to picket Red Food ostensibly as part of an area standards campaign without any knowl- edge or investigation having been undertaken as to whether Red Food paid substandard wages and benefits and there is evidence on the record that Red Food paid its employees higher wages and benefits than those paid by at least one other area grocery . See Sheet Metal Workers Local 3 (McCarthy Heating), 253 NLRB 330 (1980); Electrical Workers Locals 211 and 334 (Atlantic County Improvement Authority), 248 NLRB 168 (1980); Carpenters Local 1622 (Paul E. Iacono Structural Engi- neers), 250 NLRB 416 (1980); Carpenters Local 745, 178 NLRB 684, enfd. 450 F.2d 1255 (9th Cir. 1971), where the Board found the unions were engaged in organiza- tional picketing under similar circumstances. Moreover, with respect to the Union's campaign to discourage consumers from shopping at Red Food, the evidence presented at the hearing showed that the Union spent in excess of $22,000 and reached a substantial audi- ence through its television and radio campaigns. Al- though these advertisements by the Union mentioned area standards, they stressed the foreign nationality of the owners of Red Food and alleged loss of jobs caused by foreign-owned supermarkets although there was no evidence presented by the General Counsel that the em- ployees of Red Food were not American citizens or that any loss of jobs was occurring. Moreover, there was no evidence of any coordinated ongoing national campaign conducted by the Union against foreign-owned super- markets in general but rather this campaign appeared limited to the greater Knoxville area and was conducted against only two employers , Red Food and Lion Food although International Representative Eaker acknowl- edged that at least one other store which was foreign owned was not picketed as there was a union contract there. Moreover, when Lion Food filed for injunctive relief, the Union without explanation, withdrew its pick- 458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ets from that employer whereas it continued to picket Red Food for a period of about 3 months. Under all of these circumstances, I conclude that both the Union's al- leged area standards picketing and its campaign against foreign-owned supermarkets were a pretext utilized to mask its true purpose of organizing Red Food 's employ- ees without being subjected to the proscriptions of Sec- tion 8(b)(7)(C) prohibiting recognitional picketing by a union in excess of 30 days if no petition for an election has been filed. The alleged area standards picketing would have also afforded it more favorable treatment in the balancing of interests test that the Board had previ- ously appeared to have accorded to area standards pick- eting over organizational picketing in the Giant case. As I conclude that the picketing was organizational in nature, I also conclude that any picketing in excess of 30 days without the filing of an election petition as occurred herein was not protected. I also have reviewed the facts of this case and the cita- tions by the Respondents and conclude that the Union's activities in seeking the boycott by consumers of Red Food stores because of its foreign ownership were not protected by Section 7 of the Act. At the outset, it should be noted that while the Union and its members have a free speech right to encourage consumers to re- frain from patronizing foreign -owned supermarkets, there appears to be no Section 7 right to do so . In the instant case, the General Counsel did not undertake to prove that jobs were being lost as a result of the foreign owner- ship of grocery stores or that foreign nationals as op- posed to Americans were being employed by the for- eign-owned stores so as to effect a corresponding loss of job opportunities for American citizens . Rather, I find that the foreign ownership campaign was selectively uti- lized as a vehicle to enhance the Union 's organizational campaign to organize Red Food and Lion Food while ignoring another foreign-owned store where there was already a union contract. I note also in this regard that the targeting of grocery stores for this picketing was at least in part done by the Union's local unions in the area according to the testimony of Faker. In view of the above, I conclude that the picketing and leafletting of Red Food was organizational picketing rather than area standards picketing . I further conclude that the Union's appeal to nativistic prejudice was not protected under Section 7 of the Act. Rather, I find the Union's attempt to work economic harm upon Red Food by encouraging consumers to boycott its stores because of its foreign ownership is inconsistent with the public policy expressed by Congress in the Convention of Es- tablishment between France and the United States, 11 U.S.T. 2398, encouraging mutual investment by citizens of each country in the country of the other. Moreover, the Union's foreign-owned campaign appears to be at odds with at least the spirit of Title VII of the Civil Rights Act of 1964 prohibiting discrimination because of national origin . I note also that the Board has expressed disapproval of campaigns against others because of rea- sons such as race or national origin . See YKK (U.S.A.), Inc., 269 NLRB 82 (1984). Considering all of the above, I thus find that the General Counsel has failed to prove that the Union and its hired picketers had a Section 7 right to engage in trespassory picketing on the private property of Respondents to attempt to persuade custom- ers to boycott Red Food stores because of their foreign ownership. I further find that this aspect of the Union's campaign (foreign owned) was so enmeshed with the overall organizational campaign of the Union so as to preclude any Section 7 right of the Union to picket on Respondent's property under the circumstances of this case. Assuming arguendo that the Union may have had a Section 7 right to picket on Respondents ' premises, any picketing in excess of 30 days (as occurred in this case) would not have been protected as the Union was prohib- ited from engaging in organizational activity in excess of 30 days without the filing of a petition under Section 8(b)(7)(C) of the Act. Moreover, assuming arguendo that the Union may have had a Section 7 right to picket on Respondents' property under the Act for the initial 30- day period such as to require a balancing of the Union's interest with that of the property owners to prohibit these activities on their private premises , I conclude that the Respondents' interest should prevail as a result of the public policy considerations discussed above, the eco- nomic harm potential to Red Food, and the interest of the other property owners, Premier and Corker, in Red Food's financial stability as a lessee of their property and as a result of the evidence of the Union's substantial abil- ity to effectively disseminate its message through televi- sion and radio as occurred in this case. Moreover, I con- clude that the Union had the opportunity to adequately display their signs on public property at each of the stores' locations although their effectiveness in leafletting was diminished as a result of the traffic congestion on the public roads which adjoined the private property of Respondents. I, accordingly, find that the General Counsel has failed to prove a prima facie case of a violation of Section 8(a)(1) of the Act by the Respondents . Assuming ar- guendo that the General Counsel has proven a prima facie case of a Section 8(a)(1) violation , I find that it has been rebutted by the preponderance of the evidence. On the above findings of fact and on the entire record, I make the following CONCLUSIONS OF LAW 1. Respondents, The Red Food Stores, Inc., Premier Investment Properties , Inc., and Corker Development Corporation, are each employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondents did not violate Section 8(a)(1) of the Act as alleged. RED FOOD STORES 459 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3 ORDER The complaint is dismissed.