Giant Food Markets, Inc.

National Labor Relations Board - Board Decisions

Apr 5, 1979

241 N.L.R.B. 727 (N.L.R.B. 1979)

GIANT FOOD MARKETS, INC.
Giant Food Markets, Inc. and Retail Clerks Union,
Local 1557, AFL-CIO
S. S. Kresge Company and Retail Clerks Union, Local
1557, AFL-CIO
Wiggins & Co., Inc. and Retail Clerks Union, Local
1557, AFL-CIO. Cases 10-CA-11926, 10-CA
11927, and 10-CA 11928
April 4, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On June 10, 1977, Administrative Law Judge Hen-
ry L. Jalette issued the attached Decision in this pro-
ceeding. Thereafter, General Counsel filed exceptions
and a supporting brief, and Respondents filed a brief
in response. With permission of the Board, General
Counsel and Respondents subsequently filed supple-
mental briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, only to
the extent that they are consistent herewith.
The Administrative Law Judge found that Respon-
dents did not violate Section 8(a)(l) of the Act by
demanding that the Union's pickets, engaged in area
standards picketing, cease their picketing on the pri-
vate property of Respondents. We find merit in the
General Counsel's exceptions to this finding.
Respondent Wiggins owns a tract of land which it
leases to Kresge. Kresge operates a K-Mart store in
part of a building on that land and, prior to March
1976,' Allied Food Markets operated a store in the
remainder of the building, subletting this space from
Kresge.
On April 5, Giant Food began operating a store in
the space formerly occupied by Allied, also under a
sublease with Kresge. Giant employed none of the
former Allied employees (who had been represented
by the Union), and Giant's employees had no union
representation.
On April 5, the Union started picketing and hand-
billing on the sidewalk immediately in front of Giant.
i All events occurred in 1976 unless otherwise noted.
Some of the pickets were former Allied employees-
none was a Giant employee.
The picket signs read as follows:
Informational Picketing-Giant Food Markets
does not pay area standards wages and benefits.
Please don't shop. Retail Clerks Union 1557, 203
North I 1th Street, Nashville, Tennessee
The handbills also stated that the picketing was in-
formational; that Giant did not employ the former
Allied employees; that Giant had brought wages,
working conditions, and benefits below area stan-
dards, and urged the public not to shop at Giant.
On the afternoon of April 5, representatives of
Kresge and Giant informed the representative of the
Union and the other pickets that the entire shopping
center premises were private property and demanded
that the pickets and handbills leave the property. The
demand was not honored and the pickets remained.
On April 6, the picketing resumed in the same area
until late afternoon when the Union was served with
a temporary restraining Order issued that day by a
state court. Thereafter, the Union picketed and hand-
billed just outside the property line at the entrances
and exists to the shopping center.
The Administrative Law Judge found that the
General Counsel's allegations that Respondents un-
lawfully "prohibited" the picketing and handbilling
were not supported by the evidence. Aside from ob-
taining a temporary restraining Order and seeking an
injunction against the picketing, permissible conduct
under the Act, the only other conduct on the part of
Respondents was the demand made by Kresge and
Giant that the pickets and handbills leave the prem-
ises. That demand, absent threats of arrest or any
other threats, was not, according to the Administra-
tive Law Judge, conduct violative of Section 8(a)(1).
Having come to this conclusion, he found it unneces-
sary to discuss whether such picketing is protected
under the Act and, under the circumstances presented
here, the right to picket on the private property of
Respondents.
The General Counsel alleged that the Union was
engaged in lawful area standards picketing which is
protected under the Act from employer interference,
and, therefore, Respondents' prohibition of such pick-
eting on its property is violative of Section 8(a)(1).
We agree.
In the Calumet Contractors case,' the Board found
that area standards picketing, carried on with the ob-
jective of requiring an employer to conform its stan-
dards of employment to those prevailing in the area,
was not violative of Section 8(b)(4)(C), in the absence
2 Internaional Hod Carriers, Building and Common Laborers' Union of
America, I.ocal 41, FL- CIO (Calumet Contractors Association), 133 NLRB
512 (1961)
241 NLRB No. 105
727
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a showing that the real objective of the picketing
was for recognition and bargaining. Subsequently, in
Claude Everett Construction Company,3 such picketing
was found to be lawful, and outside the proscription
of Section 8(b)(7)(C), when it was clear that the object
of the picketing was neither union recognition or bar-
gaining with the employer, nor an attempt to organize
the employer's employees to accept or select the
union as their bargaining representative. Since decid-
ing those cases, the Board has adhered to the position
that area standards picketing is lawful in the absence
of evidence showing an objective proscribed under
the Act.
Area standards picketing is engaged in by a union
to protect the employment standards it has success-
fully negotiated in a particular geographic area from
the unfair competitive advantage that would be en-
joyed by an employer whose labor cost package was
less than those of employers subjected to the area
contract standards.4 Failure to protect these stan-
dards could result in an undermining of wage and
benefit gains in such areas. Therefore, in its attempt
to protect the area standards, a union acts only in its
own interest, but also in the interest of employees of
employers with whom it has negotiated more benefi-
cial employment standards. It is this legitimate nature
of the union's actions which we believe makes prop-
erly conducted area standards picketing not only law-
ful, but affirmatively protected under Section 7 of the
Act. Employees have a right to protect advancements
they have made, and their union as their representa-
tive has a right to protect their interests.5
However, the 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 Supreme Court
held that any rights which pickets might be afforded
to engage in such activity on private property do not
emanate from the first amendment of the Constitu-
tion. but rather have as their source the National La-
bor 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 destruction of one as is
consistent with the maintenance of the other."7 This
I Houston Building and Construction Trades Council (Claude Everett Con-
struction Company), 136 NLRB 321 (1962).
Sales Delivery Driverr, Warehousemen and Helpers Local 296 of Santa
Clara and San Benito Counties, California, et al. (Alpha Beta Acme Markets.
Inc.), 205 NLRB 462 (1973).
The term "employee," as defined in Sec. 2(3) of the Act, includes any
employee, not just employees of a particular employer. We have interpreted
this to mean members of the working class generally. Briggs Manufacturing
Company, 75 NLRB 569 (1947); Oak Apparel, Inc., 218 NLRB 701 (1975):
Little Rock Crate d Basket Co., 227 NLRB 1406 (1977).
6 424 U.S. 507 (1976).
'Citing N.L.R.B. v. The Babcock & Wilcox Company, 351 U.S. 105, 112
(1965).
approach was prescribed by the Court in Babcock &
Wilcox, supra, and Central Hardware Company v.
N.L.R.B., 8 both dealing with union organizing by
nonemployees on private property, and was also ap-
plied to the primary picketing in support of an eco-
nomic strike involved in Hudgens. Although the pick-
eting here is dissimilar in purpose to either the
organizational activity involved in Babcock, or the
primary economic picketing by the employer's em-
ployees in Hudgens, the Board's role is the same-to
accommodate the Section 7 rights of the pickets with
the private property rights of the Employer.9 How-
ever, as the Court pointed out in Hudgens, the "locus"
of the accommodation of these rights "may fall at
differing points along the spectrum depending on the
nature and strength of the respective Section 7 rights
and private property rights asserted in any given con-
text."
In accommodating the respective rights of the par-
ties, it is necessary to examine and weigh several fac-
tors. In the instant case, it may be argued that area
standards picketing is not for the benefit of the Em-
ployer's employees, but rather for the benefit and pro-
tection of complete strangers to this employment rela-
tionship. Therefore, such picketing should not be
allowed on the Employer's premises. However, as we
noted earlier, area standards picketing is a protected
Section 7 right and is for the protection of "employ-
ees" represented by the union. The fact that the em-
ployees whom the picketing is primarily meant to
benefit are not those of the picketed employer is not
as important in our view as is that fact that the em-
ployer being picketed is the employer with whom the
union has the dispute. It is this employer which the
Union charges is undermining the livelihood of the
represented employees in the area. It logically follows
that the location of the employer's business is where
the union can reasonably expect its picketing and
handbilling to have the most impact. Moreover, there
is also a strong possibility in such a situation that
such union activity, if' successful, will inure to the
benefit of the employer's employees through in-
creased compensation.
Also to be considered as a factor is the intended
audience of the pickets. Here the audience which the
pickets intend to reach with their message obviously
includes Giant and its employees. However, the pri-
mary intended audience consists of the potential cus-
tomers of Giant who become readily identifiable only
when they decide to enter the store, which may be on
impulse when they see an advertisement in the win-
dow.'° In a situation such as this, where there is more
s 407 U.S. 539 (1972).
9 See Sears Roebuck & Co. v. San Diego County District Council of Carpen-
ters, 436 U.S. 180 (1978).
1o Scott Hudgens, 230 NLRB 414 (1977).
728
GIANT FOOD MARKETS, INC.
than the one store in the shopping center (albeit in
this case there are only two stores as compared with
60 in the Hudgens situation), this is particularly true.
In this regard we find this case distinguishable from
Babcock and Wilcox and other cases involving organi-
zational solicitation. As noted in Scott Hudgens, su-
pra, where, as in organizational situations, the audi-
ence is specific (the employees to be organized),
means of communication other than direct entry onto
the employer's property (use of mail, telephone, per-
sonal contact, etc.), may afford reasonable access to
that audience. However, where, as here, the intended
audience is not readily identifiable until the audience
attempts to enter the store, such other means of com-
munication cannot be considered "reasonable" in re-
lation to their possible effectiveness."
In a similar vein, requiring that any picketing or
handbilling be conducted off the private property, at
entrances to the parking lot 250 feet or more from the
store entrance (an approximation drawn from Jt.
Exh. I in evidence), would too greatly dilute the
Union's message for It to be meaningful. This result
would follow not only from the fact that Giant is not
the only store located at the shopping center, but also
because 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.
Another factor to be taken into account is the like-
lihood of a union's picketing enmeshing neutral em-
ployers in its dispute with a particular store in a shop-
ping center. With a momentary glance at the
picketing, a potential shopper at the center might
quite reasonably infer that the entire center was being
picketed and refuse to enter the center at all. Indeed,
it would seem that requiring the pickets to station
themselves at the entrances to the parking lot in this
case would be more detrimental to neutral Kresge's
business than if the pickets were stationed directly in
front of the Giant store.
It is true that Respondents here do have a right to
control the use of their property, either as owners or
as lessees. It is also true that the fact that this prop-
erty is generally held open to the public, that in fact
the public is invited, does not give rise to a constitu-
tional right of anyone to use the property for his own
" The plurality opinion of the Supreme Court in Sears, although recogniz-
ing that it was the Board's task, in the first instance, to accommodate the
competing interests involved, suggested (but did not specifically find), that
area standards picketing may be entitled to less protection than was given
the organizational solicitation involved in Babcock (436 U.S. at 205). For the
reasons set forth above, we respectfully consider that the Court did not fully
examine and set forth the differences between such oral solicitation and
consumer picketing and the Union's substantial justification for seeking to
maintain area standards. See also the concurring opinion of Justice Black-
mun 437 U S. at 210) and the dissenting opinion of Justice Brennan (436
U.S. at 231).
purposes in disregard of the Respondents' wishes. z2
However, in weighing the statutory rights of pickets
against the property rights of Respondents, such
openness to the public is a factor which may be con-
sidered. Surely, in the absence of picket signs and
handbills, these same individuals would be welcome
on the site during business hours as potential custom-
ers. "Specific intent to buy is not a prerequisite to
invitee status .... "3 That the property here is open
to the public also distinguishes this case from Bab-
cock & Wilcox and similar cases where the property is
fenced off or otherwise closed to the general public.
(See Justice Brennan's dissent in Sears, 436 U.S. at
231.) Aside from Respondents' annoyance with the
possibility that the pickets' activities might have an
adverse effect on business at the shopping center,
there are no grounds for finding that the picketing is a
nuisance. There is no evidence of violence or of inter-
ference with ingress or egress at the Giant or Kresge
stores.
Balancing the foregoing factors weighing in favor
of the right to picket in front of the Giant store
against the reasons for prohibiting such picketing,
pursuant to the Babcock & Wilcox criteria, we con-
clude that Respondents' property rights must yield to
the pickets' Section 7 rights.
Having determined the right to engage in the pick-
eting and handbilling in front of the Giant store, the
question remains whether Respondents interfered
with such a right in violation of Section 8(a)(1) of the
Act. We agree with the Administrative Law Judge
that Respondents' petitioning for an injunction does
not constitute such unlawful interference. However,
we do not agree with his finding that a demand that
pickets leave the property must be accompanied by a
threat of arrest or some similar threat for it to consti-
tute unlawful interference. Contrary to the opinion of
the Administrative Law Judge, we believe that a de-
mand made by an owner or leaseholder of the prop-
erty that pickets remove themselves from that prop-
erty is a sufficient interference with the exercise of
protected activity coming within the ambit of Section
8(a)( 1 ) of the Act. Those receiving the demand would
not know what action might be taken, and we will not
require that they subject themselves to the possibility
of arrest or some physical act by the one making the
demand in order to carry on their protected activity.
Rather, we find that such a demand interfered with
the pickets' rights in violation of Section 8(a)(l).'4 In
it Hudgens v N L.R B. supra., Central Hardware, supra
' Scott Hudgens. supra
'' As the Administrative Law Judge correctly pointed out, Respondent
Wiggins was not involved in the demand that the pickets leave the property,
nor did it engage in any other activity which we would find violative of the
Act.
729
DECISIONS OF NATIONAL LABOR RELATIONS BOARI)
so finding, we deem irrelevant the pickets' failure to
honor the demand in this case.
CON(CI.USIONS OF LAW
I. Giant Food Markets, Inc., S.S. Kresge Com-
pany, and Wiggins & Co., Inc., and each of them, are
employers engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Retail Clerks Union, Local 1557, AFL CIO, is a
labor organization within the meaning of Section 2(5)
of the Act.
3. By demanding that the Charging Party's pickets
and handbillers leave the shopping center premises
while they were engaging in protected activity under
Section 7 of the Act, Respondents Giant Food Mar-
kets, Inc., and S.S. Kresge Company violated Section
8(a)(1) of the Act.
4. The General Counsel has failed to establish that
Respondent Wiggins & Co., Inc., engaged in conduct
violative of the Act.
5. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
TIlE EFFECTI OF THE UNFAIR LABOR PRA('II(CE UPON
COMMERCE
The activities of Respondent Giant Food Markets.
Inc., and S.S. Kresge Company, set forth above, oc-
curring in connection with their operations described
above, have a close, intimate, and substantial rela-
tionship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
distributing handbills as part of protected concerted
activity by demanding that they leave the shopping
center premises.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Post at their stores in the shopping center lo-
cated on Kingston Pike, Knoxville, Tennessee, copies
of the attached notice marked "Appendix."' 5 Copies
of said notice, on forms provided by the Regional
Director for Region 10, after being duly signed by
Respondents' authorized representatives, shall be
posted by them immediately upon receipt thereof,
and be maintained by them for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondents to
insure that said notices are not altered, defaced, or
covered by any other material. Respondents shall also
send a copy or copies of said notice to the Retail
Clerks Union, Local 1557, AFL-CIO, 203 North 11th
Street, Nashville, Tennessee, 37206.
(b) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order,
what steps it has taken to comply herewith.
15 In the event that this Order is enforced by a judgment of a United States
court of appeals, the ords in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the LUnited States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIXTHE REMEDY
Having found that Respondents Giant Food Mar-
kets, Inc., and S.S. Kresge Company violated Section
8(a)(1) of the Act, we shall order that they cease and
desist therefrom and that they take certain affirmative
action which will effectuate the policies of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela--
tions Board hereby orders that Respondents Giant
Food Markets, Inc., and S.S. Kresge Company,
Knoxville, Tennessee, their officers, agents, succes.-
sors, and assigns, shall:
I. Cease and desist from:
(a) Prohibiting the representatives of Retail Clerks
Union, Local 1557, AFL-CIO, from picketing and
NOIC('E To EMPLOYEES
PoSIIED BY ORDER OF THE
NATIONAL. LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT prohibit representatives of Re-
tail Clerks Union, Local 1557, AFL CIO, from
picketing and distributing handbills as part of
their protected concerted activity by demanding
that they leave the shopping center premises.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in Section 7
of the National Labor Relations Act, as
amended.
GIANI FOOD MARKETS, INC'.
S.S. KRES(;F COMPANY
730
GIANT FOOD MARKETS. INC
DECISION
STAI'INI ()1: tIFE CASE
HENRY L.. JAI.LEr.A, Administrative Law Judge: This pro-
ceeding involves the allegation that the above-named Re-
spondents violated Section 8(a)(1) of the National Labor
Relations Act, as amended, by prohibiting the above-
named Union. the Charging Party herein, from picketing
and handbilling at the premises of a store operated y Re-
spondent Giant Food Markets, Inc. The proceeding was
initiated by charges filed on April 29, 1976, pursuant to
which a complaint and order consolidating cases, com-
plaint, and notice of hearing issued on January 18, 1977. On
March 23, 1977, hearing was held in Knoxville, Tennessee.
Upon the entire record, including my observation of the
witnesses, and after consideration of the briefs filed by the
parties, I hereby make the following:
FINI)IN(S OF FA( I
I. FACTS
Respondent Wiggins & Co.. Inc., owns a tract of land in
Knoxville, Tennessee, which it has leased to Respondent
S. S. Kresge Company since 1967. The tract of land has
been improved by the construction of one building in
which, for a number of years. Respondent Kresge has oper-
ated a "K-Mart" store and Allied Food Markets operated a
retail food store pursuant to lease or other business arrange-
ment with Respondent Kresge. About March 1. 1976, Al-
lied Foods ceased operation of the store:' and on April 5,
1976, Respondent Giant began operation of the retail food
store on the premises previously occupied by Allied Foods
pursuant to a sublease from Respondent Kresge.
The employees of Allied Food Markets had been repre-
sented by the Union herein and their terms and conditions
of employment had been governed by collective-bargaining
agreement between the Union and Allied Food Markets.
Respondent Giant's employees are not represented by any
labor organization; and on April 5, 1976. the Union. by its
representatives and individuals who were not employees of
Respondents but some of whom had been employees of
Allied Foods, started picketing and distributing handbills
on the premises of the shopping center. specifically on the
sidewalk immediately in front of Respondent Giant's store.
The picket signs read as follows: "Informational Picket-
ing-Giant Food Markets does not pay area standards,
wages, and benefits. Please don't shop. Retail Clerks Union,
1557, 203 North I 1th Street, Nashville, Tennessee."
The handbill read as follows:
Informational Picketing
THIS PI(KETING IS NOT TO PREVENT I)ELIVERIES FROM
BEING MAD)E OR T SO()P EMPLOYEES ROM WORKING.
I This date is based tn testimony of Union Representative F L. Collins. In
view of the stipulated fact that Respondent Kresge subleased the premises to
Respondent Giant on Januar 30. 1976. Collins may hase been mistaken:
however, the specific date is unimportant
TilS IS OUR WAY OF IFORMIN(; YO(), THE B YN(i P'B-
IIC. ()F A SIT'TATION ItIAT HAS ('OSI SVE RAI KNOX-
V..E C (IIIZINS TEIR JOBS.
A I.IEI) FOODS CORPORAlON SOLt) IlIS STORE 10
(GIANI ()()OODS ARKEIS, IN('. (ilANT FOOI) MARKTS DID )
NO() EMPLOY tile EMPLOYEES WHtO \WERE WORKIN(i Ar
TilE STORE THEY BOUHI. I-HESE EMPI.OYEES WERE MAK-
IN(i GOOD WAGES AN) BENEFITS. NOW IHEY ARE ()N
U:NEMPL.OYMENT BENElII[S AND) FOOD SIAMPS ALl.
IHANKS It (GIANr FOO()I) MARKEIS.
THIS COMPANY NOW WANIS YOU' TO WELCOME IIEM -Or
THIS ITY WIrt OPEN ARMS! DO THEY I)ERSEE (SIC)
SI(II A WEI.COME? WE SAY N) -NErER!
(ilANI FOOD MARKETS NOT ONLY BROUlGHtI WAGES,
iWORKING (CONDITI()NS AND BENEFITS BELt.) AREA
STANDARDS tI tHIS ST(ORE., EY (REATEI) NE M PI.()Y-
MELNI FOR I- EMPLO.(Y\EES PRE\'I()OUSLY WO(RKING IN
rtltS S ORE.
Please don't shop
Your Support Will Be Greatl Appreciated
RETAIl ( IRKS UNION. 1O()( Al 1557, AFl-CIO
203 North 11 th Street
Nashville, Tennessee 37206
On the afternoon of April 5, 1976. representatives of Re-
spondent Kresge and Respondent Giant jointly informed
the representative of the Union and the pickets and hand-
billers acting in concert with him that the entire shopping
center premise, including the areas on which they were
picketing and handbilling. was privately owned property
and that the representatives of Respondent Kresge and Re-
spondent Giant demanded that the representative of the
Union and those acting in concert with him leave the prem-
ises. These individuals refused to leave the premises and
continued to picket and distribute handbills throughout the
business hours on April 5, 1976. This activity was resumed
the following day and continued until the issuance and ser-
vice of a temporary restraining Order issued by a state
court that same day. Thereafter, the Union resumed picket-
ing and handbilling just outside the property line at certain
of the exits and entrances to the shopping center. On Feb-
ruary 23, 1977, after hearing. the state court dismissed the
petition for injunction for lack of jurisdiction. At the time
of the hearing herein, the order of dismissal was pending
appeal before the Tennessee Supreme Court.
II. ANAIYSIS AND CONCLUSIONS
As noted earlier, the complaint alleges that Respondents
violated Section 8(a)( 1) of the Act in that, in the words of
paragraph 7 of the complaint, they "prohibited the Union
from picketing and handbilling of Giant's store." The com-
plaint did not specify by what means Respondents "prohib-
ited" the picketing and handbilling, and the record indi-
cates only two possible ways in which the prohibition was
accomplished: (I) by the conduct of Respondents in peti-
731
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
tioning for and obtaining a temporary restraining order
against the picketing and handbilling on their premises, and
(2) by the conduct of the representatives of Respondent
Kresge and Respondent Giant on April 5 in demanding
that the union representative and pickets leave the prem-
ises.
As to ( I), it is settled law that the obtaining of an injunc-
tion against peaceful picketing and handbilling is not con-
duct violative of Section 8(a)(1) of the Act, even if such
picketing and handbilling are protected by Section 7 of the
Act:2 and General Counsel conceded at the hearing that he
was not contending that the obtaining of the injunction
constituted 8(a)( I) conduct.
As to (2), General Counsel has not indicated on what
basis a "demand" that union representatives leave Respon-
dents' premises constitutes interference, restraint, or coer-
cion within the meaning of Section 8(a)( ) of the Act. The
demand was unaccompanied by any threats, unlike the de-
mands in Hudgens v. N.L.RB.. 424 U.S. 507 (1976). and
Peddie Buildings., supra, where the demands included
threats of arrest. and I can see no basis for inferring an
unlawful threat from the demand alone. As the record indi-
2Clde Taylor, dbha Clyde Taylor (onmpnar. 127 NL RB 103 (1960):
United Aircraft torporation (Pratt & Whitne Dision). 92 NLRB 382
(1971); Frank Itsceglia and Vincent ivceglia, t/a Peddie Buildings. 203
NLRB 265 (1973).
cates, the Union did not comply with the demand; yet Re-
spondents did not engage in any conduct other than to pe-
tition for an injunction, an act which was itself not
unlav, ful.l
For the foregoing reasons, assuming, arguendo that the
Union had the right to picket and handbill on Respondents'
premises, I find that there is no showing that Respondents
engaged in conduct which unlawfully interfered with the
exercise of that right.
CON(I.tUSIONS OF LAW
I. Giant Food Markets, Inc., S. S. Kresge Company, and
Wiggins, & Co., Inc., and each of them, are employers en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Retail Clerks Union, Local 1557, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. General Counsel has failed to establish by a prepon-
derance of the evidence that Respondents engaged in con-
duct violative of Section 8(a)( I) of the Act.
IRecommended Order or dismissal omitted from publi-
cation .
EI ven if the demand were construed as coercive, there is no basis for
finding a violation against Respondent Wiggins which did not participate in
the demand but only joined in the injunction
732