Giant Food Stores, Inc. And Easton Development Co.

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 330 (N.L.R.B. 1989)

330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Giant Food Stores, Inc. and Easton Development
Company and United Food and Commercial
Workers , Local 1357 . Case 4-CA-15117
June 15, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFr
On July 17, 1986, Administrative Law Judge
Robert W . Leiner issued the attached decision, and
on August 1, 1986, he issued the attached Erratum
to that decision . The Charging Party filed excep-
tions and a supporting brief. The Respondents filed
cross-exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, ' findings, and
conclusions only to the extent consistent with this
Decision and Order.
Contrary to the complaint 's allegations, the
judge found that Respondent Giant did not violate
Section 8 (a)(1) of the Act by demanding that union
pickets leave its Palmer Township, Northampton,
Pennsylvania shopping center store premises or be
arrested . The judge further found that the Re-
spondents ' maintenance of a lawsuit in the Pennsyl-
vania state courts related to the picketing and
handbilling that occurred at the Palmer Township
store did not lack a reasonable basis in law. He
therefore recommended that the portion of the
complaint alleging a violation of the Act based on
the maintenance of the lawsuit be dismissed, but
that the Board retain jurisdiction over that allega-
tion 'pending completion of the state court proceed-
ings . For the reasons set forth below , we reverse
the judge and find that Respondent Giant violated
Section 8(a)(1) by causing and acquiescing in the
police demand that the pickets move or face arrest.
Additionally , for the following reasons, we agree
with the judge 's recommended dismissal of the
complaint allegation regarding the lawsuit, but we
shall retain jurisdiction over that allegation pending
the disposition of the state court litigation.
Background
Respondent Easton Development Company is
the developer and operator of a shopping center lo-
cated in Palmer Township , Northampton , Pennsyl-
vania . Respondent Giant Food Stores, Inc. oper-
ates a chain of retail food stores, including one lo-
cated in the Palmer Township shopping center
being developed by Easton.
In 1983 , Easton granted Giant a 20-year lease
covering a 33,000 square foot store in Easton's then
prospective shopping center . The store was leased
to Giant, according to the lease , "together with the
right to the non -exclusive use, in common with
others, of all such automobile parking areas, drive-
ways, footways and other facilities . . . designed
for common use ...." The lease further provid-
ed:
Landlord shall construct . . . the parking areas
.. . approaches , entrances , exits, sidewalks,
[and] roadways . . . all hereinafter referred to
as "common areas", "common facilities", or
"public areas", for the reasonable operation of
the Shopping Center and Tenant 's business in
the Demised Premises , all of which Tenant, its
customers, employees and all those having
business with it, are hereby granted the right
to use and enjoy , in common with other ten-
ants, their customers , employees , and those
having business with them. Landlord shall
keep and maintain the foregoing in good repair
and condition and reasonably free of snow,
ice, refuse and other obstructions.
Giant 's store is the largest store in the shopping
center, which was planned to have about 15 stores
when completed . There are two entrances into the
store which are separated by a 25 -foot vestibule.
The entrances open onto a sidewalk running the
length of the store front.
The shopping center is bordered by two high-
ways . William Penn Highway runs roughly east to
west and borders the shopping center to the south.
Greenwood Avenue runs roughly north to south
and borders the shopping center on the east. Both
highways have a posted 35 -mile-per-hour speed
limit . There are two entrances to the shopping
center , one from each road . The William Penn
Highway entrance is located about 425 feet from
the entrances to the Giant store . The Greenwood
Avenue entrance is located about 200 feet from the
entrances to the Giant Store.
In preparation for the scheduled May 14, 19852
store opening, Giant representatives and Giant's at-
torneys on May 6 met with Palmer Township
Police Chief DiVietro3 and Deputy Chief Lutz to
r The Respondents have excepted to the judge 's exclusion of evidence
regarding the cost and availability of mass media in the marketing area
where the Giant store is located In light of our decision below, we find
it unnecessary to pass on the Respondents ' exception
2 All dates are in 1985 unless otherwise indicated.
0 The judge inadvertently misspelled Chief DiVietro's name We cor-
rect this error.
295 NLRB No. 38
GIANT FOOD STORES 331
review general security procedures. Giant informed
Chief DiVietro that based on prior experience,
Giant , whose employees are not represented by
any labor organization , could expect mass picketing
once the store opened. Giant told Chief DiVietro
that police were not to bother pickets if they ap-
peared even if they were on private property.
Giant explained that it would handle the matter
through a civil legal action.
Giant opened its store as planned on May 14. Be-
tween May 14 and June 21, Giant was the only
store open in the shopping center . By March 1986,
a total of 15 or 16 stores were open in the shopping
center.
On May 15, union pickets distributed leaflets on
the sidewalk in front of the Giant store's two en-
trances and in the parking lot. The police received
a phone call on May 15 concerning the pickets and
sent an officer to the store. The officer observed
people with signs in front of the store and people
putting leaflets on cars in the parking area.
On May 16, Police Chief DiVietro called Doug-
las Diehl , Giant 's human resources representative,
and asked if Diehl knew that there were pickets at
the Giant store the previous day. Chief DiVietro
urged Diehl not to be "wishy-washy" regarding
the pickets. Diehl replied: "Chief, understand, we
don't like that they are out there. We will call you
if they reappear." Police Chief DiVietro's notes
made after his conversation with Diehl indicate
that "[t]hey [Giant] do not want these people out-
side the store . . . . If they return, Giant will call."
Shortly thereafter, Chief DiVietro told Deputy
Chief Lutz that if the police received a call from
Giant, they would move the pickets from in front
of the store to the parking area entrances.
On May 20, Giant and Easton as co-plaintiffs
filed a civil lawsuit in Pennsylvania state court al-
leging that the Union was engaging in mass picket-
ing and trespassing. The suit requested , inter alia,
that the Pennsylvania court enjoin the picketing.
At I1 a.m. on May 24, six pickets arrived at the
Giant parking area to picket and handbill in protest
of Giant's failure to pay the prevailing "area stand-
ard" wages and benefits. Two pickets were sta-
tioned outside each of the two entrances to the
Giant store and two more pickets were stationed
on a "pork chop-shaped" island at the William
Penn Highway entrance. None of the pickets was
an employee of Giant.
Giant's district supervisor, Robert Motter, tele-
phoned the police to report the arrival of the pick-
ets. Responding to the telephone call from Giant,
Deputy Chief Lutz arrived at the shopping center
and told the pickets to move away from the Giant
store entrances to the parking area entrances. Lutz
warned the pickets that they would be subject to
arrest for criminal trespass if they did not move.
The pickets complied with Lutz' demand. Lutz
then went into the store to speak with Motter.
Lutz told Motter that he had "taken care of your
problem" and asked Motter what he wanted done.
Motter replied, "Well, you're the policeman." Lutz
said , "O.K.," and left.
In a subsequent telephone conversation that day,
Diehl told Police Chief DiVietro that moving the
pickets had not been authorized by Giant and that
Giant had made clear at the May 6 meeting what it
wanted done. Chief DiVietro said that thereafter
the police would only act with respect to the pick-
ets in an emergency such as their blocking traffic.
The pickets remained at the islands and side-
walks for the rest of May 24. However, within at
most 3 days, they had returned to the Giant store
entrances where they remained through the time of
the hearing.4
On June 10, the Union filed a charge with the
Board alleging that the Respondents had violated
Section 8(a)(1) of the Act by filing "spurious legal
actions designed to curtail or eliminate" the
Union's picketing rights. On June 14, the Union
filed an amended charge alleging that moving the
pickets on May 24 also violated the Act.
On June 13, the Union filed "Preliminary Objec-
tions" in the state court proceeding initiated by the
Respondents. The Union's objections asserted, inter
alia, that the state court lacked subject matter juris-
diction based on preemption of the National Labor
Relations Act because the Union had filed an
unfair labor practice charge with the Board. On
July 1, the state court issued its decision 5 holding
that the court lacked subject matter jurisdiction
over the mass picketing claim due to a failure of
proof.6 As to the Respondents' trespass claim, the
court ruled that it was preempted from considering
the issue by the Union's filing of a related charge
with the Board. On November 29, the Respondents
appealed the court's decision to the state appellate
court.
The Union's Picketing
The complaint, as amended , alleges that Re-
spondent Giant, acting through Motter and Lutz,
violated Section 8(a)(1) on a specific day, i .e., May
24, by demanding that the union pickets leave the
4 The parties have different estimates of how long the pickets remained
away from the front of the store The judge did not resolve the dispute.
The longest estimate was 3 days.
S The decision of the state trial court is reported at 120 LRRM 2024.
9 The court ruled that there was insufficient evidence of mass picket-
ing, violence , or intimidation and therefore Pennsylvania law prohibited
the issuance of an injunction on this basis.
332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
shopping center or be arrested. The judge, apply-
ing Giant Food Markets, 241 NLRB 727 (1979), enf.
denied 633 F.2d 18 (6th Cir. 1980), concluded that
Respondent Giant did not violate the Act. The
judge found that the shopping center property was
"open" to the public; and the Union's picketing
and handbilling did not create a "nuisance." How-
ever, the judge further found that, because the
Giant store was the only store in the shopping
center open on May 24, the Union's intended audi-
ence was clearly identifiable, there was little risk of
enmeshing neutral employers, and the impact of
picketing and handbilling from the perimeter of the
shopping center was not significantly diminished.
Therefore, the judge concluded that the Respond-
ent did not violate the Act on May 24 by requiring
the pickets to move to the perimeter of the shop-
ping center.7 We do not agree.
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. In Jean Country, the Board stated
that a "threshold question" in the accommodation
analysis was whether the Respondent possessed
"genuine interests" in the property. Id. at 16. The
Board explained that:
[O]f course, there is an initial burden on the
party claiming the property right to show .. .
that it has an interest in the property and what
its interest in the property is. A party has no
right to object on the basis of other persons'
property interests; and an employer's mere ob-
jection to having union pickets outside its es-
tablishment does not in itself rise to the level
of a property interest . See Barkus Bakery, 282
NLRB 351 (1986), enfd. mem. sub nom.
NLRB v. Caress Bake Shop, 833 F.2d 306 (3d
Cir. 1987).
Jean Country, supra at 13 fn. 7.
In this case, Respondent Giant has not estab-
lished that it has any exclusory property interest in
the sidewalk in front of the Giant store or in the
shopping center parking areas, the areas where the
picketing and handbilling occurred. The lease es-
tablishes that Respondent Easton gave Respondent
Giant merely the "non-exclusive" right to "use"
such common areas . Furthermore, the lease specifi-
cally provided that Respondent Easton, the land-
lord, would be obligated to maintain common areas
In dismissing , the judge stressed that the complaint alleged a viola-
tion on only one day, i.e., May 24 Because he dismissed the complaint
allegation , the judge did not pass on the alleged agency status of the
police. We do so below.
and keep them free of obstructions.8 See also Polly
Drummond Thriftway, 292 NLRB 331 (1989).
We agree with the judge that by its picketing
and handbilling the Union was engaged in protect-
ed activity. We note that the language of the
Union's picket signs and handbills communicated
an area standards objective in protest of Respond-
ent Giant's failure to pay prevailing area wages and
benefits. The Union's overall conduct was in con-
formance with its stated area standards purpose,
and did not indicate an organizational or recogni-
tional component. Area standards activity is a form
of consumer publicity and is protected by Section 7
of the Act, albeit 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 (1975). Thus, we find that the Union was
engaged in picketing and handbilling protected by
Sec. 7 of the Act.
Finally, the evidence reveals that Respondent
Giant caused and acquiesced in the police demand
that the pickets move to the shopping center pe-
rimeter or be arrested. It telephoned the police to
inform them that the pickets had returned to the
shopping center on May 24. After Deputy Chief
Lutz demanded the pickets move, Lutz told Giant's
district supervisor, Motter, that he had "taken care
of your problem" and asked Motter what he
should do. Motter replied, "Well, you're the po-
liceman ." Although Giant's human resources repre-
sentative, Diehl, later told Chief DiVietro that
Giant had not authorized the actions of the police,
Respondent Giant did not repudiate those actions
or inform the pickets that the actions had not been
authorized.9 Thus, we conclude that Respondent
Giant is responsible for the demand that the pickets
move.
Because Respondent Giant has failed to show
that it had an exclusory property interest in the
areas where the protected picketing and handbill-
ing occurred, a threshold issue, we conclude that
Respondent Giant violated the Act when it caused
8 Unlike the situation in Jean Country , here Respondent Easton is not
alleged to have taken any part in the demand for the pickets to move and
there is no evidence to suggest any such involvement by Easton
Although the lease gives Respondent Giant the right to "exclusive use
and control of that portion of the 'common areas ' . . . labeled Promotion
Area," the lease introduced into evidence does not identify any "Promo-
tion Area." The pertinent lease section refers to an "Exhibit A " as setting
out the "Promotion Area ." "Exhibit A," however, was not attached to
the lease , which was entered into evidence without objection. Therefore,
there is no proof that "Exhibit A ll to the lease existed on May 24, the
date of the alleged unfair labor practice Thus, due to a failure of proof,
we reject the contention that Respondent Giant had the exclusive use and
control of the sidewalk in front of the store on that date . In any event,
we note that the area immediately in front of Respondent Giant 's store
was only one of the areas to which access was denied.
B There is no evidence to suggest that Motter or any other Giant em-
ployee was acting as an agent of Easton See fn 8, above.
GIANT FOOD STORES
and acquiesced in the Palmer Township police's
moving of the pickets.
The State Court Litigation
The complaint , as amended at the unfair labor
practice hearing, alleges that Respondents Giant
and Easton violated Section 8(a)(1) by maintaining
and prosecuting since June 10, 1985 , a retaliatory
civil lawsuit seeking to enjoin the Union 's picket-
ing. Applying the Supreme Court's decision in Bill
Johnson 's Restaurants v. NLRB, 461 U.S. 731
(1983), the judge concluded that the maintenance
of the Respondents ' state court lawsuit after the
Union filed an unfair labor practice charge with
the Board was not "baseless ." The judge dismissed
the complaint allegation and further recommended
in his erratum that the Board retain jurisdiction
over the complaint allegation concerning the law-
suit pending completion of the state court proceed-
ings.
For the reasons set forth below , we agree with
the judge that the Respondents ' maintenance of the
state court lawsuit after the Union filed an unfair
labor practice charge did not lack a "reasonable
basis ." We therefore shall dismiss this complaint al-
legation but , like the judge, we shall retain jurisdic-
tion over that allegation pending final disposition
of the state court proceedings. In doing so, we find
it unnecessary to pass on the judge 's discussion of
whether the Respondents ' lawsuit was retaliatory.
In Bill Johnson 's Restaurants, above, the Supreme
Court, while acknowledging that lawsuits filed by
employers may be powerful instruments of coer-
cion or retaliation , nonetheless found that the first
amendment right of access to the courts and the
States' compelling interest in maintaining domestic
peace prohibited the Board from enjoining as an
unfair labor practice a well-grounded lawsuit re-
gardless of the employer 's motivation in filing it.
The Court indicated, however, that the Board was
empowered to enjoin a lawsuit that lacks a reason-
able basis if the lawsuit was filed with the intent to
retaliate against employees exercising their rights
under the Act.
The Court further indicated that when confront-
ed with an allegation that the filing and prosecu-
tion of a lawsuit violates the Act, the Board first
must determine whether the suit has a "reasonable
basis ." 10 If it is found that the suit lacks a reasona-
ble basis, the Board may then proceed with the
unfair labor practice proceeding and determine
whether the suit was filed with a retaliatory
motive . Should the Board determine that the suit
1°The Court stated that the Board could apply the "genuine issue"
test used in adjudging motions for summary judgment when making its
reasonable-basis determinations 461 U S. at 745 fn. 1 l
333
has a reasonable basis, however , then the Board
may not enjoin the suit , but must stay its unfair
labor practice proceeding until the state court suit
has been concluded. The Court further stated that
if the state court ultimately finds merit in the em-
ployer's suit, the eml:-oyer should also prevail
before the Board because the filing of a meritorious
lawsuit, even if filed for a retaliatory purpose, is
not an unfair labor practice . Finally, the Court in-
dicated that if the state court judgment goes
against the employer or the suit is
withdrawn or is otherwise shown to be with-
out merit, the employer has had its day in
court, the interest of the State in providing a
forum for its citizens has been vindicated, and
the Board may then proceed to adjudicate the
... unfair labor practice case.
Bill Johnson's Restaurants, 461 U.S. at 747.
Applying the Court's decision in Bill Johnson's
Restaurants to the facts of this case, we must first
examine whether the Respondents ' maintenance
and prosecution of the state court lawsuit after
June 10, had a reasonable basis." In doing so, we
note that the record in this case shows that the
state court proceedings are still pending.
The General Counsel , as explained at the under-
lying unfair labor practice hearing, takes the posi-
tion that after the Union filed an unfair labor prac-
tice charge , the state court's jurisdiction was pre-
empted and, therefore , the Respondents ' mainte-
nance of the suit after that date violated the Act.
We find that the record evidence is insufficient to
establish that the Respondents ' maintenance of the
suit after June 10 lacked a reasonable basis.
In Longshoremen v. Davis, 476 U.S. 380 (1986),
the Supreme Court stated that when it is asserted
that a state court lacks jurisdiction over a lawsuit
because the suit has been preempted by the Act,
"[the issue] must be considered and resolved by the
state court." 476 U.S. at 393. As indicated above,
the General Counsel did not allege that the filing
of the lawsuit was an unfair labor practice, but
merely that its maintenance subsequent to the filing
of the charge by the Union violated the Act. Be-
cause the state court was obligated to consider the
preemption claim once it was raised by the
Union,12 it cannot be said that the litigation of that
issue or the subsequent appeal of the state court's
11 Significantly , the General Counsel did not allege that the filing or
maintenance of the lawsuit prior to June 10, the date the Union filed an
unfair labor practice charge , violated the Act
12 We note that the preemption claim was not asserted by the Union as
a defense to the state court suit until June 13, 3 days after the charge had
been filed with the Board.
334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
resolution of that claim , without more, lacked a
reasonable basis. t 3
Having concluded that the maintenance of the
state court suit after June 10 had a reasonable basis,
Bill Johnson's Restaurants, above, requires that the
Board stay its hand pending completion of the state
court proceedings . Accordingly, we dismiss the al-
legation of the complaint concerning the Respond-
ents' alleged retaliatory lawsuit , but shall retain ju-
risdiction over this complaint allegation for further
consideration on prompt notification by any party
of a final, binding determination or resolution of
the merits by the Commonwealth of Pennsylva-
nia.14 In light of our disposition here , we find it
unnecessary to determine the remaining issues
raised by the exceptions and cross-exceptions.
ORDER
The National Labor Relations Board orders that
the Respondent, Giant Food Stores, Inc., Palmer
Township , Northampton, Pennsylvania , its officers,
agents, successors , and assigns, shall
1. Cease and desist from
(a) Prohibiting representatives of United Food
and Commercial Workers, Local 1357, from engag-
ing in peaceful picketing and handbilling protected
by the Act in front of the Respondent's store in the
Easton Shopping Center , Palmer Township , North-
ampton , Pennsylvania , and causing and acquiescing
in the police threatening of such representatives
with arrest for engaging in such picketing and
handbilling as long as that activity is conducted by
a reasonable number of persons and does not
unduly interfere with the normal use of the facili-
19 Chairman Stephens also notes that , in light of the Supreme Court's
decision in Sears, Roebuck & Ca. v. Carpenters, 436 U .S. 180, 207 fn. 42
(1975), the filing of a state court lawsuit for trespassory area standards
picketing cannot be found to have been lacking any reasonable basis by
virtue of the suit 's legal theory . Further , there is no claim here that the
suit was without a reasonable basis in fact , e g., that the pickets did not
actually trespass on the property in question As for the contention that
there was no reasonable basis for maintaining the suit after an unfair labor
practice charge was filed against the Respondents with respect to their
exclusion of the pickets , he notes that , although there is a strong argu-
ment based on the reasoning of the plurality opinion and the opinion of
Justice Blackmun in Sears that the suit would be preempted on the filing
of a charge, the Supreme Court did not reach that question. Id. at 206-
207, 209 . It cannot be said at this point that the Respondents acted with-
out reasonable basis in attempting to persuade the state court that it
should follow the reasoning of Justice Powell 's concurring opinion in
Sears, which took the view that state court jurisdiction over trespassory
area standards picketing was not automatically preempted on the filing of
an unfair labor practice charge with the Board challenging the exclusion
of the pickets Id at 212-214 . Indeed, even Justice Blackmun indicated
that if a charge were filed with the Board , the state court suit need not
be dismissed , but could be merely stayed pending final action by the
General Counsel or the Board. Id. at 209.
14 The judge entered a similar order in his erratum . The Respondents
question his jurisdiction to do so subsequent to the issuance of his deci-
sion . We need not pass on the issue that the Respondents raise because in
our review of the judge 's recommended disposition of this allegation,
based on the Charging Party 's exceptions , we clearly have jurisdiction to
enter this order.
ties or operation of businesses not associated with
the Respondent 's store.
(b) In any like or related manner interfering
with , restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Post at its office at the Easton Shopping
Center copies of the attached notice marked "Ap-
pendix."15 Copies of the notice, on forms provided
by the Regional Director for Region 4, after being
signed by the Respondent 's authorized representa-
tive , shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered , defaced,
or covered by any other material.
(b) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint alle-
gation not specifically found to be a violation is
dismissed ; provided , however, that jurisdiction
over this allegation is retained for the purpose of
entertaining an appropriate and timely motion for
further consideration on a proper showing that the
state court proceedings have been completed.
'S If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join , or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
GIANT FOOD STORES 335
WE WILL NOT prohibit representatives of United
Food and Commercial Workers, Local 1357 from
engaging in peaceful picketing and handbilling pro-
tected by the Act in front of our store in the
Easton Shopping Center, Northampton, Pennsylva-
nia, and cause and acquiesce in the Palmer Town-
ship police 's threatening of such representatives
with arrest for engaging in such picketing and
handbilling , as long as their activity is conducted
by a reasonable number of persons and does not
unduly interfere with the normal use of the facili-
ties or operation of businesses not associated with
us.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
GIANT FOOD STORES, INC.
Marvin L. Weinberg, Esq., for the General Counsel.
Eric Hemmendinger, Esq. (Shawe & Rosenthal), of Balti-
more, Maryland, for the Employer.
Michael N. Katz, Esq. (Meranze and Katz), of Philadel-
phia, Pennsylvania , for the Union.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER , Administrative Law Judge. This
matter was heard on March 10 , 11, and 12 in Philadel-
phia, Pennsylvania, on the General Counsel 's complaint,'
as amended at the hearing, alleging , in substance, that
Giant Food Stores , Inc. and Easton Development Com-
pany (the Respondents) violated Section 8(a)(1) of the
National Labor Relations Act (the Act), by maintaining
and prosecuting , since on or about 10 June 1985, a civil
action for an injunction (Court of Common Pleas, North-
hampton County , Pennsylvania) proscribing certain pick-
eting2 by the United Food and Commercial Workers,
Local 1357 (the Union or the Charging Party); and that
Respondent Giant Food Stores , Inc. (Giant), but not Re-
spondent Easton, violated Section 8(a)(1) of the Act on
24 May 1985 by demanding that union pickets leave the
Palmer Township shopping center store or be arrested.3
At the hearing, all parties were represented by coun-
sel, were given full opportunity to call and examine wit-
nesses, submit oral and written evidence , and to argue
orally on the record . At the close of the hearing, the par-
ties waived final argument and elected to file posthearing
briefs, which have been carefully considered.4
On the entire record, including the briefs , and from
my observation of the demeanor of the witnesses as they
testified , I make the following
FINDINGS OF FACT
I. RESPONDENTS AS STATUTORY EMPLOYERS
A. The complaint alleges, Respondent Giant Food
Stores, Inc. (Giant) admits, and I find , that Giant, a
Delaware corporation , operates a chain of retail food
stores, including one in Palmer Township, Pennsylvania,
and in the year ending December 1985, in the course of
its business operations , received gross revenues in excess
of $500,000, and in the same period purchased and re-
ceived materials and supplies in excess of $50,000 from
points outside Pennsylvania . Giant concedes that at all
times material it is and has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
B. The complaint alleges, Respondent Easton Devel-
opment Company (Easton) admits, and I find that at all
material times, it has been and is a general partnership
engaged in the development and operation of a shopping
center in Palmer Township , Northampton , Pennsylvania;
that in the past year , in the course of its business oper-
ations, it derived gross revenues in excess of $250,000
and, in the same period , purchased and received materi-
als and supplies in excess of $50,000 from points outside
Pennsylvania . Easton , however, denies the complaint al-
legation and conclusion that it is an "employer engaged
in commerce" within the meaning of Section 2(2), (6),
and (7) of the Act. In Carol Management Corp., 133
NLRB 1126 (1961), the Board adopted a standard for as-
serting jurisdiction over operators of shopping centers:
gross annual revenue in excess of $ 100,000; in excess of
$25,000 annually other than indirect outflow or inflow.
Easton's above admissions of the volume of its annual
operations and direct inflow meet or exceed such Board
standard . I conclude that its denial raises no material
issue of fact ; that the Board should assert jurisdiction
over its operations , El Conquistador Co., 231 NLRB 840,
841 fn . 6 (1977); and that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE UNION AS A STATUTORY LABOR
ORGANIZATION
The complaint alleges, Respondents admit, and I find
that at all material times, United Food and Commercial
Workers, Local 1357 (the Union), is a labor organization
within the meaning of Section 2(5) of the Act.
' The Union 's underlying unfair labor practice charge was filed on 10
June 1985 and served on 12 June 1985. Its amended charge was filed and
served on 14 June 1985
2 At the hearing , the complaint was amended to allege that Respond-
ent's lawsuit was maintained and prosecuted in retaliation for the Union's
picketing . The General Counsel specifically refrained from alleging this
conduct as constituting a violation of Sec . 8(a)(4) of the Act.
' All dates hereinafter will refer to 1985 unless otherwise specified. Re-
spondents' answer admitted certain allegations , denied others , and denied
the commission of any unfair labor practices.
III. THE ALLEGED UNFAIR LABOR PRACTICES
In 1983, Respondent Easton Development Company,
as lessor (Landlord) granted a 20-year lease, with incre-
4 The General Counsel also submitted , with his brief, a motion to cor-
rect transcript, consisting of 15 corrections. The unopposed motion is
granted.
336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mental renewal options , to Respondent Giant covering a
33,000 square foot store in its prospective shopping
center in Palmer Township, Northampton , Pennsylvania.
Giant operates retail food stores in Pennsylvania, Mary-
land, Virginia, and West Virginia. Easton is a Missouri
General Partnership and is the owner-developer of the
shopping center . The lease (G.C. Exh . 6) discloses that
the contemplated store was ]eased (G.C. Exh. 6, sec.
202) "together with the right to the nonexclusive use, in
common with others, of all such automobile parking
areas, driveways . . . and other facilities . . . designed
for common use as shall be installed by Landlord."
The lease also provides (G.C. Exh. 6, sec. 901):
Landlord shall construct . . . the parking areas .. .
approaches, entrances, exits, sidewalks , roadways
.. . all hereinafter referred to as "common areas,"
"common facilities," or "public areas ," for the rea-
sonable operation of the Shopping Center and Ten-
ant's business in the demised Premises , all of which
tenant its customers , employees and all those having
business with it, are hereby granted the right to use
and enjoy, in common with other tenants , their cus-
tomers, employees, and those having business with
them.
The plan for the shopping center subdivision (G.C.
Exh. 7), various photographs (G.C. Exh. 5 and subparts
thereof) and testimony given at the hearing show that
the Giant store is by far the largest store among the 15
planned stores in the approximately 10.6-acre tract,
which contains over 400 parking spaces, 5.9 paved acres
and 3 .05 landscaped acres . The shopping center's central-
ly located parking lot (425 x 300 foot) services vehicles
entering from William Penn Highway (running roughly
east-west) and from Greenwood Avenue (running rough-
ly north-south). The distance from the single William
Penn Highway entrance/exit to the store's entrance is
approximately 425 feet; the distance from the single
Greenwood entrance/exit appears to be about 200 feet
from the store 's entrance area . The Giant store is in the
north-east corner of the shopping center . The towns of
Easton and Bethlehem , Pennsylvania, are 1-1/2 miles
East and 6 miles West, respectively, from the shopping
center along the William Penn Highway . Both Green-
wood Avenue and William Penn Highway have 35-mile-
per-hour speed limits.
At each of the above two entrances , there is an irregu-
lar "pork chop" shaped traffic island, which serves as a
traffic divider for entering and exiting traffic. The pork-
chop island at the William Penn entrance is about 38 feet
long, with largest width of 21 feet, and a height of 5
inches . The pork-chop island at the Greenwood Avenue
entrance is about 35 feet long with a maximum width of
20 feet and a smallest width of 3-1/2 feet. The record
does not disclose its height . Except for the openings at
these two entrances , there are contiguous , 5-foot wide
sidewalks bordering the property along Greenwood
Avenue and William Penn Highway. Along Greenwood
Avenue, the sidewalk abuts the curb up to the entrances;
thereafter, it is set back several feet by a grass border as
it stretches into the right-angle junction with William
Penn Highway . Along William Penn Highway, the side-
walk is also set back from the curb by a similar grass
border.
Right-hand turning vehicles from the two -lane, south-
bound (northbound has one lane) Greenwood Avenue,
drive past the "pork chop" island into the parking lot or
directly into the "fire lane " in front of the Giant Store
(G.C. Exhs. 5(c) and (7)). The innermost of the two
Greenwood Avenue lanes is a deacceleration lane into
the entrance. Left-hand turns for northbound traffic
cannot be made because of a raised masonry traffic di-
vider blocking the Greenwood Avenue entrance. Thus,
entrance from Greenwood Avenue is only by right turn
via a deacceleration lane. No entrance stop light or stop
sign is present.
Entrance from the essentially two-lane, east -west Wil-
liam Penn Highway is either through a right turn (west-
bound) from a similar deacceleration lane, to the right of
a "pork chop" island divider ; or a left turn from a sepa-
rate left-turn lane, controlled by a traffic light, to the left
of the island . Passages around the respective "pork chop
islands" are wide enough to permit the passage of two
cars abreast . The two deacceleration lanes can hold a
line of at least one-half dozen waiting cars . Traffic on
both roads is heavy at rush hours.
Pictures and a sketch of the parking lot disclose
groups of slightly raised islands within the parking lot at
various distances from the store but they appear to be
covered , or at least bordered , by shrubbery and bushes.
The above facts existed on 24 May 1985 and at the
time of the hearing.
On 6 May 1985, in preparation for 14 May opening,
Giant agents and supervisors (Douglas Diehl and
Schiano) and attorneys (Stitt and Hemmendinger) met
with Palmer Township police (Chief De Vietro and
Deputy Chief Lutz). The police, consistent with their
practice on the opening of any new business in the town,
reviewed security procedures such as retail theft and
bank escorts. Diehl told the police that based on prior
experience with this Union , Giant expected mass picket-
ing when the store opened . Chief De Vietro, in turn,
showed them a copy of an injunction issued against pick-
eting of a local business. The Giant representatives told
the police that if the pickets showed up, the police were
not to bother them even if they were on private proper-
ty; that they were not doing anything "wrong"; that
Giant would deal with the matter through a civil legal
action and did not want to make martyrs out of the pick-
ets with arrests and publicity . The Giant employees are
not represented by any labor organization.
The store opened on 14 May . At least through 21
June, it was the only store in the shopping center which
was open. At the time of the hearing , March 1986, there
were 15 or 16 stores open for business in the shopping
center.
On the 2 days following the store opening, 15 and 16
May, the Union distributed leaflets on the sidewalks in
front of the store entrances (Tr. 351 , 353) and in the
parking lot. The store has two entrances /exits . They are
at either ends of a 25-foot connecting vestibule in front
of the store . Abutting the vestibule there is a 10-foot
GIANT FOOD STORES
sidewalk, protected by an overhang. Adjoining the side-
walk, there is a "fire lane" area in the parking lot from
which food from carts are loaded into customer automo-
biles (G.C. Exh. 5(d); C.P./G.C. Exh. 3). The front door
of the store carries a sign : "Unauthorized solicitation for
any purposes or the distribution of literature of any kind
by nonemployees on company premises is not permit-
ted."
Thus, on the first 2 days of the Union's appearance, 15
and 16 May, the Union passed out leaflets (Tr. 351). On
15 May, the police received a phone call from Giant
concerning pickets and sent a police officer . He reported
seeing in the parking lot in front of the store people with
signs and people placing pamphlets on cars.5
On 16 May, Chief De Vietro telephoned Respondent's
representative , Douglas S. Diehl , who was at the store.
Diehl (director of human resources), corporate employee
relations supervisor concerning Respondent 's 4800 em-
ployees, recalled that De Vietro asked if Diehl knew that
there were "picketers at your store last evening." He
urged Diehl not to be "wishy -washy" and to call him if
the pickets returned . Diehl , apparently responding to De
Vietro's "wishy-washy" assertion, said (Tr. 493):
Chief, understand , we don't like that they are out
there . We will call you if they reappear.
Chief De Vietro dictated his recollection of the con-
versation to the police dispatcher:
Chief De Vietro called Doug Diehl of the Giant
Supermarkets reference to union organizers outside
the Palmer store . They do not want these people
outside the store. Car 15 (BF) responded to the
store but the people had left about 1/2 hour prior.
If they return, Giant will call.
Soon after his conversation with Diehl (Tr. 218), Chief
De Vietro spoke with Charles V. Lutz, his deputy chief.
He told Lutz that if they received a phone call from
Giant, that the pickets were at the store, they would
move the pickets from in front of the store to the drive-
way entrances (Tr. 219, 227).
On 20 May, Giant and Easton Development Company
filed a lawsuit in the Court of Common Pleas, North-
ampton County, Pennsylvania, the complaint alleging the
Union's engaging in mass picketing and trespassing. The
remedy sought was an injunction against trespassing,
blocking of ingress and egress, and intimidation of cus-
tomers . The Union filed responsive "Preliminary Objec-
tions" to the complaint, inter alia, alleging NLRB pre-
emption . The case did not come to hearing until 21 June.
At 11 a.m. on 24 May, in the parking lot, there were
six union leafleters , wearing picket signs ("Giant unfair
to workers. This picket line protests sub-standard area
s The record (G.C. Exhs 4(a)-(e)) shows four, single-page leaflets dis-
tributed by the Union . All of them urge nonpatronizing of Giant, two of
them name "fair" competitors . At least two assert that Giant does not
pay its employees "fair, competitive area wages and benefits " and that it
is "foreign" owned . It is not clear when in May all four of the leaflets
were distributed and in what groups . The case proceded on the assump-
tion that all four leaflets were distributed in the parking lot prior to 24
May 1985.
337
wages . Do not patronize this unfair employer"). The
bottom of the signs bore the name of the Union. The
pickets distributed leaflets (Tr. 360) asking "neighbors"
to not patronize Giant which was foreign -owned and
was not paying "fair , competitive area wages and bene-
fits to its employees" (G.C. Exh. 4(b)). These pickets
were stationed two at each door at the store's entrance;
and two on the "pork chop" island in the William Penn
Highway entrance to the parking lot. The record does
not show whether the "pork chop" islands are public
property whether through dedication or otherwise. Re-
spondents , on this record , do not in any case appear to
object to the pickets occupying the "pork chop" islands,
whether or not private property. The pickets were in-
structed by the Union not to block the store
entrances/exits, not to harass customers and just to hand
out leaflets. Of the six pickets , two were union organiz-
ers and four were paid , professional pickets (Tr. 355 et
seq.). None were Giant employees.
Within a few minutes of the appearance of the pickets
on the morning of 24 May, Giant District Supervisor
Robert Motter (Respondent supervisor concerned with
the store opening) telephoned the police to report the
presence of the pickets and then telephoned supervisor
Diehl to tell him that he had just called the police.
About 20 minutes later , Diehl called Motter to find out
what had occurred. Motter told him that the police had
come, had moved the pickets from the parking lot to the
street, and Motter had thanked them (Tr. 580). Diehl
then telephoned Chief De Vietro for an explanation of
the events. In the first of two telephone conversations on
that day, De Vietro told Diehl that "we took care of
your problem" (Tr. 583) and in the second, told him that
"maybe his men overreacted ." (Tr. 584). In any event,
neither Diehl nor any other Respondent agent ever told
the Union or the pickets that the police action removing
the pickets to the street was beyond "what they should
have done and [Respondent] was disavowing it" (Tr.
586).
What had occurred at the picket line was that at 11:15
a.m., Deputy Chief Lutz, responding to Supervisor Mot-
ter's phone call, came to the store and instructed the
pickets to leave the store area and go to the parking lot
entrances. He told them that if they did not leave the
store area, they would be subject to arrest for criminal
trespass . Lutz admitted that he observed no threats or in-
timidation by the pickets , but, nevertheless , told the pick-
ets that "we" were "not going to tolerate any intimida-
tion of customers walking in or out of the place" and
that leaflets could be distributed at the parking lot exits
(Tr. 251-153). He also testified that he would not have
removed the pickets if Giant had not called the police.
Lutz then entered the store and told Supervisor
Motter that: "I've taken care of your problem" by
moving the pickets to the street entrances . When Lutz
asked him "what he wanted done," Motter answered:
"Well, you're the policeman ." Lutz said "OK" and left.
It was at this point, above, that Chief De Vietro spoke
by telephone with Supervisor Diehl, wherein De Vietro
told Diehl that the store had called the police and that
"we took care of your problem." In those conversations,
338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Diehl asked De Vietro what he meant by that statement
and De Vietro said that Lutz had removed the pickets.
Diehl asked if he had talked to anyone in the store and
De Vietro said that he spoke to the store manager after
the action was taken. When De Vietro then asked for
written authorization for his action and for future action
regarding the pickets, Diehl told him that the police
action had not been authorized and that before he gave
him anything in writing, he would first consult counsel.
Later that day, Diehl telephoned De Vietro, told him
that he had consulted counsel, that there would be no
written authorization for police action; that the police
action had not been authorized; and that the Respond-
ents' desires were made clear in the 6 May meeting with
the police. De Vietro said that thereafter, the police
would act only in emergency situations such as "block-
ing or traffic problems" (Tr. 498).
The pickets did not long remain at the street entrances
to which they had been directed by the police. Accord-
ing to General Counsel' s witnesses, they remained at the
entrances and the islands only for the following 2 or 3
days. Respondent's witnesses uniformly testified that the
pickets returned to the parking lot and the store's en-
trances the next day. In either event, after consulting
union counsel, the pickets, with leaflets and pickets signs,
returned to the store entrances in the parking lot, and
also at the islands and entrances (Tr. 368-370), where
they remained through the time of the hearing.
Safety; effectiveness of communications
Chief De Vietro testified that the leafletting from the
"pork chop" islands at the two entrances would be safe
with regard to oncoming automobiles, entering and leav-
ing the parking lot. While he saw picketers occasionally
distribute leaflets inside the parking lot, from the narrow
median traffic dividers (only 2 feet of flat surface and no
appreciable curb), he considered those to be unsafe plat-
forms from which to distribute literature. Other, larger
islands within the parking lot, as above noted, are cov-
ered by, or at least bordered by, plantings and shrubbery.
The testimony concerning both the actual effect on
passengers , in and out of vehicles, of leaflet distribution
from sidewalks and islands at the entrances and on antici-
pated future traffic flow was in dispute. The credible evi-
dence is that, notwithstanding exclusive access lanes for
right-hand turns, and the traffic light at the entrance
from William Penn Highway for left-hand turns (there is
no left-hand turn into the Greenwood Avenue entrance)
and notwithstanding the width of the passageways sur-
rounding the "pork chop" islands at the entrances (al-
lowing the passage of cars around a vehicle stopped at
the island to accept a leaflet), there could well be future
traffic problems. Chief De Vietro's testimony supported
that conclusion. A vehicle stopped for a leaflet at a
"pork chop" island, if not sufficiently "inboard" to the
island (whether entering or exiting) could occupy suffi-
cient space to effectively prevent parallel passage from
the rear. A further complication arising from any such or
similar blockage is that impatient entering drivers await-
ing right turn entry even from the exclusive access lanes
might attempt to leave the line and be struck from the
rear. Similarly, at the William Penn Highway entrance,
where the traffic light provides an exclusive left turn
under the protection of "green arrow" light, should a
left-turning vehicle stop at (and fortuitously block) the
passage at the "pork chop" island, the following left-
turning vehicles seeking entrance, at the expiration of the
"green arrow," would be "trapped" out on the highway,
blocking oncoming William Penn Highway traffic.
On the other hand, with pickets stationed on the en-
trance islands as well as the store doors, there is no evi-
dence that any traffic problems actually occurred either
on 24 May or at any time up to the hearing. Further-
more, the record does not show the frequency of left-
hand turns, any inconvenience to vehicles, or the obser-
vation of "lane jumping" from the access lanes . Indeed,
based on the 21 June stipulation of the parties in the state
court action (where the stipulation was that there were
pickets both at the store's doors and at the street en-
trances), the Court of Common Pleas found, as of 29
July 1985 (R. Exh. 10, p. 6, Finding #14): "The picket-
ing at the entrances to the parking lot from the public
streets has not resulted in any blocking of traffic." To
the extent that a picket (Frinzi) testified (Tr. 463, et seq.)
that there were traffic problems when he was picketing
at the island entrances, apart from occasional hornhonk-
ing against drivers stopped at the islands to talk to him,
there is no evidence of vehicles improperly using en-
trances and exits, much less that they did so because of
the presence or functioning of the pickets. In any event,
absence of this material from the state court record and
the present record leads me to conclude that any traffic
problems occurred, if at all, after 29 July, or alternative-
ly, were held by the state court to be immaterial.
With regard to the effectiveness of the Union's ability
to communicate with persons approaching the store, the
evidence showed that immediately after 24 May, when
the policeman temporarily removed the leafleters to the
street and islands, at least half6 of the entering drivers
stopped at the islands for the pickets. Over the succeed-
ing 10 months (i.e., after the pickets resumed picketing at
the store entrances), very few vehicles stopped to speak
to the pickets stationed at the islands in the parking lot
entrances (Tr. 461). Motorists rarely parked their cars
and then returned to converse with the pickets. Motor-
ists who stopped at the islands often hurried their con-
versations. As above noted, within a few days (at most)
of the police action which removed the pickets to the
street, and through the time of the hearing, the pickets
had returned to picketing at the store's entrances, in the
parking lot, out on the street and the "pork chop" is-
lands.
When the pickets returned to picketing and leafletting
at the store's doors,' the conversations were longer.
6 Joseph Frinzi, a paid picketer , testified (Tr. 461) that when the pick-
ets were exclusively at the islands , "approximately half, maybe more
stopped " Union organizer Julie Nissey testified that in the same period,
'less than half' the motorists stopped at the islands and a "lot less" than
half stopped to talk and pick up leaflets (Tr. 376). Fnnzi described the
percentage stopping at the islands as "occasional" and then put the figure
at "approximately half, maybe more." Fnnzi's credible testimony makes
Nissey's conflicting testimony less than trustworthy.
7 Respondent's witnesses testified , as above noted, supported by the
store "log," that the pickets returned to the parking lot, not after several
Continued
GIANT FOOD STORES
There, there was no opportunity for the driver of a vehi-
cle, passing a picket at the island in the entrance, to
leave his window rolled up and ignore the picket (Tr.
462).
State Court Litigation
As above noted, Giant and Easton, on 20 May filed an
action in equity seeking, inter alia, to enjoin the picketing
and handbilling on the store 's premises. On 10 June, the
Union filed its charge alleging 8(a)(1) and (3) invasion of
Section 7 rights by Respondents ' "filing spurious legal
actions designed to curtail or eliminate" its picketing
rights. On or about 13 June, it filed its preliminary objec-
tions (and supporting memorandum ) to Respondents'
complaint , asserting in defense , the Court's lack of sub-
ject matter jurisdiction because, the Union having filed
unfair labor practice charges with the NLRB , "exclusive
primary jurisdiction" over the matters alleged in the
state action rested in the NLRB . The Union 's defenses
also include alleged state law jurisdictional defects in the
complaint. The theory of Respondents' requested injunc-
tion remedy included an invocation of the state's police
power against union-caused customer intimidation, vio-
lence, blocking of ingress by mass picketing and destruc-
tion of property.
Trial in the Court of Common Pleas was 21 June.
Before the hearing , union counsel asked Respondents'
counsel why he was pursuing a police power aspect to
the injunction . Respondent 's counsel answered : "I know
we really don't have much to go on, however, I am
going to give it my best shot with whatever I have."
The parties then stipulated, in the state court proceeding,
that:
Since the picketing and handbilling commenced, the
plaintiffs have received no threats of violence and
there has been no violence, destruction of property
or blocking of ingress or egress by mass picketing at
the Easton store. There have been no threats or vio-
lence that plaintiffs are aware of.
Thereafter , Respondents called witnesses . Respondents
contend before me (Br . 19) that they were seeking to es-
tablish in the state court that the "demeanor" of the
pickets included cursing at and blocking customers; and
that this conduct, even if not sufficient to justify the issu-
ance of an injunction under the state police power, was
"arguably relevant to the Union' s claim of a right to tres-
pass under state constitutional law," citing Western Pa.
Socialist Workers 1982 Campaign v. Conn. General Life
Insurance Co., 485 A. 2d 1 (1984).8
days on the islands , but on the next day, i.e., 25 May. In view of the
disposition hereafter , resolution of the issue is not necessary I have
chosen to accept General Counsel's witnesses ' testimony, arguendo, that
the pickets did not return for 2 or 3 days to the parking lot, especially to
give a broader time period to the alleged violation than the complaint
allegation actually supports.
6 The crucial holding in Hudgens v. NLRB, 424 U S. 507 (1976), is that
the accomodation of the competing rights to picket (statutory) and to be
free from trespassory invasion (private property) was not to be analyzed
under the U.S. Constitution but under the Act. Thus Hudgens held, re-
versing prior cases , that there is no federal constitutional right for a
Union to picket on private property in furtherance of an economic strike.
339
On 1 July, Presiding Judge Williams nevertheless
issued his decision, Giant Food Stores v. Food & Commer-
cial Workers Local 1357, 120 LRRM 2024, denying Re-
spondents ' request for injunction and holding , inter alia,
that the state court lacked jurisdiction under the state
police power (to protect the public health and welfare)
due to failure of proof of violence, coercion , mass picket-
ing or other unlawful behavior; and thus, under the
state's Anti-Injunction Act (43 Pa. C.S.A. secs. 206 et
seq.) (prohibiting Pennsylvania state courts from enjoin-
ing organized labor activities), he could not enjoin the
instant picketing/handbilling.
With regard to enjoining the Union 's trespass (as op-
posed to the element of violence or coercion) on private
property, the Court held, that since the picketing, includ-
ing the "trespass," was arguably a matter within the
scope of Sections 7 and 8 of the NLRA, the Court was
preempted from considering the subject (i.e., whether
trespassory area standards picketing on private property
was "protected" under the NLRA). Under the ruling in
San Diego Building Trades Council v. Garmon , 359 U.S.
236, the exclusive initial jurisdiction for resolution of that
issue resided in the Board .9 It also held, that the excep-
tional circumstances necessary for the exercise of state
court jurisdiction under Sears, Roebuck & Co. v. Carpen-
ters, 436 U.S. 180 (1978), to restrain trespassory area
standards picketing , in spite of the Garmon preemption,
supra, did not apply because , in the instant case, unlike
Sears, Roebuck, the Board 's jurisdiction had been in-
voked (albeit after the filing of the Respondent 's injunc-
tion action) by the Union's filing of the unfair labor prac-
tice charge. Finally, the Court rejected the argument
that since , under Court decisions , statutory protection of
.,area standards" picketing is so tenuous , the Union's
trespass ought to be enjoined , pending Labor Board de-
termination of the unfair labor practice issue . The Court,
under Garmon, held that the balancing of the competing
private property right against the asserted invasive statu-
tory right nevertheless was for the NLRB.
On 5 August, the court entered its decree denying the
injunction.
On 29 November, having already filed exceptions, Re-
spondents appealed the Common Pleas court denial of
the injunction to the Superior Court of Pennsylvania, ar-
guing, inter alia, that subject -matter jurisdiction had not
been preempted by the Union's filing the unfair labor
practice charge with the NLRB, under Sears, Roebuck &
Co., supra. Respondents ' exceptions also related to the
Court's failure to find that a picket cursed a store em-
ployee.
In regard to the former issue , Respondents are appar-
ently alluding to the dispute, in Sears, Roebuck & Co.,
supra, in the opposing opinions of Justices Blackmun and
Powell. Justice Powell observed, on the question wheth-
Any right to such invasion of private property must be derived from the
protection of the Act.
9 In Sears, Roebuck & Ca v. Carpenters, 436 U .S. 180 (1978), the Su-
preme Court notices - "Where applicable, the Garman doctrine complete-
ly preempts state court jurisdiction unless the Board determines that the
disputed conduct is neither protected nor prohibited by the Federal Cat."
(fn. 29). Accord: Longshoremen Y. Davis, 476 U.S. 380 (( 1986).
340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
er "state-court jurisdiction is preempted forthwith upon
the filing of a charge by the union. I would not join the
Court's opinion if I thought it fairly could be read to
that effect" (Justice Powell, concurring, 98).110
In any event, the parties argued the appeal in the Su-
perior Court of Pennsylvania on 4 March 1986, but no
decision has been rendered to date.
Discussion and Conclusions
A. Legal Background; Area Standards Picketing:
(1) The Board has addressed the issues presented by
trespassory area standards picketing in shopping centers,
Giant Food Markets, 241 NLRB 727 (1979), enf. denied
633 F. 2d 18 (6th Cir. 1980).11 Whatever another forum
may have observed or held on the same or similar issues,
to the extent that the Board has spoken, as it has in Giant
Food Markets, supra, I am, with due respect to such
other forum, bound to the Board's view and am not
bound by other opinions. Iowa Beef Packers, 144 NLRB
615, 616 (1963). This rule certainly applies to the Board's
interpretation of decisions of the United States Supreme
Court.
There is no dispute, as I understand the contentions of
the parties, that although the Union here was denigrating
the foreign ownership of Giant, it was, in any event,
picketing and handbilling to protest Giant's failure to pay
its employees the prevailing area wages and maintain
area standards. This is "area standards picketing."12 The
handbill references to foreign ownership allege that infe-
riority of wages flows therefrom. Foreign ownership is
thus part of the "area standards" assertion and not a dif-
ferent theme.
Giant Food Markets, supra (Giant), holds that "proper-
ly conducted area standards picketing [is not] only lawful
but affirmatively protected under Section 7 of the Act"
(Giant at 728).
Since the protection of Section 7 rights is not absolute,
and since the Board, following Hudgens v. NLRB, 424
U.S. 507 (1976), has been directed to accommodate Sec-
tion 7 rights and private property rights" "with as little
10 Justice Blackum, concurring , stated "the logical corallary to the
Court's reasoning was that if the Union does file a charge upon being
asked by the employer to leave the employer 's property and continues to
process the charge expeditiously , state court jurisdiction is preempted
until such time as . . the Board , applying the standards of NLRB Y.
Babcock & Wilcox Co., 351 U S 105 '( 1956) ... Pules against the Union
and holds the picketing to be unprotected ." In the instant case, the police
removed the pickets to the street on 24 May; the charge was not filed
until 10 June Thus , there was a 16-day hiatus -between removal of the
pickets from the picketing lot to the Union's filing the charge. On the
other hand , the handbilling started on 15 May and Respondents filed for
the injunction on 20 May . With regard to the latter issue, the picket curs-
ing an employee in the first days, of the picketing, Respondents appear to
be aware of Mr Justice Powell's "danger of violence" concern which
flows from "sustained trespassory picketing," ibid.
11 The Giant Food employer-respondent in the reported case is not re-
lated to the instant Respondetit
12 Giant Food Markets, 241 NLRB at 728: "Area standards picketing is
engaged in by a union to 'protect the employment standards it has suc-
cessfully negotiated in a particular geographic area from the unfair com-
petitive advantage that would be enjoyed by an employer whose labor
cost package was less than those of employers subjected to the area con-
tract standards."
13 There has been no dispute before me that Giant is the lessee of
property owned by Easton . The rights in shopping center private proper-
destruction of one as is consistent with the maintenance
of the other" (Giant at 728), it is the Board's exclusive
function (of course with Court review), in fashioning the
accommodation in each case, to determine exactly
where, on the "spectrum" of protection afforded by Sec-
tion 7, the particular factual "locus" will fall (Giant at
728):
as the Court pointed out in Hudgens, the "locus" of
the accommodation of these rights may fall at dif-
ferent points along the spectrum depending on the
nature and strength of the respective Section 7
rights and private property rights asserted in any
given context.
Although the Board firmly asserted that area standards
picketing is protected by Section 7, it necessarily ad-
dressed (Giant at 729 fn. 11) the issue of the relative
strength of that protection because of certain overtly hos-
tile Supreme Court language on that point in Sears, Roe-
buck & Co. v. San Diego Carpenters, 436 U.S. 180 (1978).
At footnote 11 in Giant, the Board stated:
The plurality opinion of the Supreme Court in
Sears, although recognizing that it was the Board's
task , in the first instance , to accommodate the com-
peting interests involved , suggested (but did not
specifically find) that areas standards picketing may
be entitled to less protection than was given the or-
ganizational solicitation involved in Babcock (436
U.S. at 205 ). For the reasons set forth above, we re-
spectively consider that the Court did not fully ex-
amine and set forth the differences between such
oral solicitation and consumer picketing and the
Union's substantial justification for seeking to main-
tain area standards . See also the concurring opinion
of Justice Blackman (437 U.S. at 210) and the dis-
senting opinion of Justice Brennan (436 U.S. at 231).
It might be noted that , in addition to the plurality opin-
ion respecting the "locus" of protection to be granted to
area standards picketing on the Section 7 "spectrum," a
fifth Justice , Justice Powell , concurring, referred to such
picketing as a "publicity campaign maintained by nonem-
ployees and directed at the general public ." He added
that such "area standards trespassory picketing is certain-
ly not at the core of the Act's protective ambit" (436
U.S. at 193).14
ty enjoyed by lessee Giant are not the same as those of proprietor
Easton , when faced by a union picketing on such property Holland
Rantos Co., 234 NLRB 726 (1978), enfd. sub nom . Eisenberg v. Holland
Rantos Co., 583 F 2d 100 (3d Cir. 1978). In the instant case , while it is
true that Easton played no discernible part in the police ouster of the
pickets from the parking lot, it has been , and is, a party-plaintiff in the
state court injunction action designed to achieve the same result. Were
Easton not thus responsible for the state court litigation , the two pleaded
8(a)(1) violations would not be so interrelated . Had Easton distanced
itself from removing the pickets from the parking lot, the action would
be solely that of Giant; and Giant's right, acting alone , to exclude pickets
from the parking lot may be far different from Easton 's Cf. Holland
Rantos Co., 234 NLRB at 736; Hudgens Y. NLRB, 424 U.S. 507 (1976).
14 The Board , in apparently rejecting Justice Powell's position, has
concluded that the audience for such picketing includes Giant's employ-
Continued
GIANT FOOD STORES 341
In balancing "area standards" statutory, and competing
private property, rights under the Supreme Court's Hud-
gens rule, the Board, in Giant, established five criteria as
the framework to analyze the factual issues and secure an
accommodating legal balance in that case . The five crite-
ria are : the place of impact of the picketing ; the intended
audience of the pickets ; the enmeshing of neutral em-
ployers in the dispute; the degree to which the private
property is "open" to the public; and the extent to which
the picketing creates a legal nuisance . The Board did not
assign relative weights to any of these criteria . In addi-
tion , it is clear that some of the criteria at least, such as
"impact" and "intended audience ," are interrelated.
(2) Applying the Giant rules : As in Giant, the greatest
impact of the picketing and handbilling on 24 May, t 5 on
the evidence herein , apparently was at the store's doors.
The General Counsel and the Union argue that, in any
event, picketing at the store 's doors is necessary because
picketing at the street sidewalks and at the islands would
"substantially dilute the Union 's Section 7 rights since
the effectiveness of the picket lines depends on the loca-
tion." Seattle-First -National Bank v. NLRB, 651 F.2d
1272 (9th Cir. 1980). I believe that the Giant precedent
requires the conclusion that picketing at street entrances,
only, would ordinarily unnecessarily dilute the Section 7
right and that picketing at the doors would have the
greater impact in securing statutory rights.16
With regard to the fourth Giant criterion, the "open-
ness" of the private property, there would appear to be
little doubt that the store , as lessee, and Easton , as lessor,
desired the greatest "traffic" consistent with shopping
center business . Not only does the lease relate "parking
ees and that such picketing , in any event, is for the protection of "em-
ployees," even if not employees of the picketed employer (Giant, at 728)
It is the picketed employer , the Board observes , whose wage practices
undermine the livelihood of unionized labor in the area . In support of this
position , that "area standards picketing" is protected by Sec . 7, the Board
notes that while it is dissimilar both to picketing by nonemployees for
organizational purposes (NLRB v. Babcock & Wilcox Co., 351 U.S. 105
(1965)) and to primary economic picketing by the employer 's own em-
ployees (Hudgens v. NLRB, 424 U .S. 507 (1976)), it remains the Board's
function to accommodate this Sec 7 right to the private property rights
of the Respondents
is The complaint, as amended, alleges as the first of two 8(a)(1) viola-
tions only a single event occurring on I day Giant causing the removal
of the pickets under threat of police arrest on 24 May This is unlike the
second allegation of 8(a)( 1) violation-the maintenance and prosecution
of a retaliatory lawsuit-which asserts a continuing condition : "Since on
or about 10 June 1985 ," the Respondents engaged in alleged proscribed
conduct . In short , the lawfulness of Giant 's conduct under the first alle-
gation , removing pickets, must be measured only on the day of the
threat, i.e., 24 May . If that threat of arrest involved an interference with
protected conduct , it would ordinarily be unlawful ; if, on the other hand,
the conduct , for any reason , was "unprotected," then the interference
would not give rise to an infraction of statutory significance The plead-
ings seem to me to properly reflect the record - if Respondents' witnesses
are credited , the pickets returned to the positions at the doors of the store
on private property on the next day (25 May), if the General Counsel
witnesses are credited , they returned after about 2 or 3 days . The testi-
mony , 'however , was clearly focused on what happened on 24 May, Tr.
458-460; see particularly , Maintenance Service Corp, 275 NLRB 1422
(1985).
16 In Seattle-First National Bank, supra, the court , agreeing with the
Board , permitted invasion of private property by picketing in support of
an economic strike by employees. The Court cautioned, however, that a
"different accommodation might be appropriate if some activity not at
the core of Sec. 7, such as area standards picketing , were at issue." The
Court cites , inter alia , Sears, Roebuck & Co., supra, and Giant.
areas," "entrances," "exits" and "sidewalks" to "public
areas," but the lease extends use thereof to customers,
employees and "all those having business with it ." What-
ever else such generous lease terms include (there is no
evidence of such lease terms in Giant), at the very least
they provide the argument that Respondents themselves
viewed the parking lot, sidewalks , entrances , and adjoin-
ing areas as "public" places and can not forcefully com-
plain , after Giant, that "area standards" pickets are not
among those having "business " with Respondent Giant
on the sidewalks outside the two store entrances. If the
Board granted "invitee" status to area standards pickets
in Giant, then in the presence of the lease terms here, a
fortiori, the Board should give the instant pickets the
right to be on the parking lot, including the sidewalks at
the store 's entrances . In short, the terms of lease lead me
to conclude that the parking lot, including the store en-
trance, are more "open" here than in Giant.
With regard to the fifth criterion in the Giant analysis,
the creation of a "nuisance ," I note that in the state pro-
ceeding, Respondents stipulated as of 21 June that there
was no picket line violence, mass picketing or blocking
of ingress or egress . Before me, however , they place em-
phasis on the alleged instances of a picket cursing an em-
ployee and of a picket placing himself in front of a shop-
ping cart pushed by a store customer in the parking lot
in order to place a handbill in the shopping cart. I am
not at all satisfied that the record shows that both of
these alleged (but denied by the General Counsel's wit-
nesses) incidents occurred on or before 24 May. But
even if they did, and even if they occurred as testified to
by Respondent 's witnesses , they would not, in aggregate,
amount to the creation of a "nuisance," within the mean-
ing of the fifth criterion in the Giant analysis. To the
extent that the Respondents argue that the pickets have
left food containers and other debris at and near the
doors, there is no showing that the Respondents have
objected to Giant's customers and strangers depositing
such refuse at or near the store . The credited evidence is
that Respondent treated all such conduct as part of its
business activities. To complain only of the pickets'
debris does not strengthen the "nuisance " aspect of the
picketing. Certainly the deposit of such debris was not,
on this record , proved to be of any different or greater
nature than the debris left by others. As in Giant, I
would conclude that the evidence fails to show that the
picketing on the parking lot, in general, or at the doors,
in particular , constitutes a "nuisance ." Rather, if the cri-
terion of "nuisance" was strictly observed , it would seem
to me that a greater nuisance would occur if the pickets,
on public property at the entrances , caused any sort of
traffic jam or tie up where their presence inside the park-
ing lot would not cause such a public problem. 17
The second and third Giant criteria, the "intended au-
dience" and the "emmeshing of neutrals," are interrelat-
ed, Giant at 728-729:
17I assume that in analyzing the Giant criteria , supra, whether the
Union 's pickets created a "nuisance," I am not necessarily bound by the
substantive law of the Commonwealth of Pennsylvania. But cf. NLRB v.
A. Duie Pyle, Inc., 730 F.2d 119, 126 (3d Cir. 1984) in which state law
was the guide to determine the law of "self defense."
342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Here the audience which the pickets intended to
reach with their message obviously include Giant
and its employees . However, the primary intended
audience consists of the potential customers of
Giant who become readily identifiable only when
they decide to enter the store . . . . In a situation
such as this, where there is more than one store in
the shopping center . . . this is particularly true.
[Emphasis added.]
The Board then adds:
In this regard we find this case distinguishable from
Babcock and Wilcox and other cases involving orga-
nizational solicitation . As noted in Scott Hudgens,
supra, where, as in organizational situations , the au-
dience is specific (the employees to be organized),
means of communication other than direct entry
onto the employer 's property (use of mail, tele-
phone, personal contact , etc.), may afford reasona-
ble access to that audience . However, where, as
here, the attending audience is not readily identifia-
ble until the audience attempts to enter the store,
such other means of communication cannot be con-
sidered "reasonable" in relation to their possible ef-
fectiveness.
In a similar vein, requiring that any picketing or
handling be conducted off the private property, at
entrances to the parking lot 250 feet or more from
the store entrance (an approximation drawn from
Joint Exhibit 1 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 park-
ing lot from 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 fact 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 picket-
ing, 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 di-
rectly in front of the Giant store . [Emphasis added.]
The distinction between Giant and the instant case is
that here, as the General Counsel concedes (Br. p. 18),
on 24 May (at least through 21 June), Respondent's store
was the only store in business in the shopping center.
This fact, alone, I believe, substantially eliminates Giant
as a legal support for the statutory intrusion (area stand-
ing picketing) into Respondent's private property rights
and brings into play the ordinary Babcock & Wilcox and
Sears, Roebuck elements: that with regard to private
property intrusions by organizational picketing nonem-
ployees, relying on protected Section 7 rights as a de-
fense or justification for such intrusion , the burden im-
posed on the Union "is a heavy one," Sears, Roebuck &
Co., supra, 436 U.S. at 190.
To gain access, the Union has the burden of
showing that no other reasonable means of commu-
nicating its organizational message to the employees
exist... .
Even on the assumption that picketing to enforce
area standards is entitled to the same deference in
the Babcock accommodation analysis as organiza-
tional solicitation ,42 it would be unprotected in
most instances.
Footnote 42 appearing in the above-indented quotation,
436 U.S. 180, 206, begins:
This assumption , however, is subject to serious
question.
Whatever else the Supreme Court has established, it
has insisted on rules distinguishing between the picketing
rights of employees and of nonemployees in measuring
intrusions on private property . "The distinction is one of
substance." NLRB v. Babcock & Wilcox Co., 351 U.S.
105, 113 (1956); Hudgens v. NLRB, supra.
Respondent 's brief forcefully argues, and I conclude,
that because there was only one store open on 24 May,
when the alleged Section 8(a)(1) threat of arrest oc-
curred , the audience (which the Union was seeking to ad-
dress) entering the parking lot, especially by automobile,
on that day, was clearly identifiable. While in theory, the
audience might include Giant employees , sightseers, tres-
passers, and construction crews (of the incomplete
stores), more likely, as the evidence here shows, the
large majority was customers or potential customers of
the Giant Food Store . If the handbills are credited, the
object of the Union' s communication , in any event, was
only to customers of Giant and thus any attempt at com-
munication with trespassers , Giant employees or others,
was coincidental . Unlike Giant, therefore, the intended
audience was identifiable because, with regard to its
"area standards" message, the arriving automobiles and
pedestrains could only patronize one place : the Giant
Market.
Whatever other arguments exist in favor or placing
pickets on private property , the impact element is here,
as opposed to impact in Giant, largely diminished for the
same reason . The handbilled persons at the entrances
almost necessarily were Giant customers . There was no
store open for business except Giant. The Union was at-
tempting to communicate basically with Giant patrons. t 8
There is no reason why drivers and their passengers
cannot read a sign or accept a leaflet at the pork-chop
islands . As Respondents point out , the Union voluntarily
used these pork -chop islands as points to station pickets
all during the period up to and after 24 May. There was
no showing why the pork chop islands lost their impact
18 In Giant, the Board , acknowledging that the audience is primarily
Giant's potential customers , also includes as audience the Giant employ-
ees, Giant at 728 . Audience, of course, is different from the group the
Union is seeking to protect (its members) and is thus different from the
avowed object of the picketing (maintain area standards).
GIANT FOOD STORES
utility . The Board 's conclusions , above, in Giant, with
regard to dilution of the pickets' message and the ineffec-
tiveness of positioning pickets at the street entrances to
communicate with incoming vehicles and pedestrians, are
belied by the Union voluntarily stationing its pickets at
those islands in order to impart messages . Thus, the
actual experience of the Union in the instant case in gain-
ing the attention of its intended audience must take prec-
edence over the Board 's conclusion in Giant, supra. 119
As with the Giant elements of impact and audience,
there is no enmeshing of other stores in the shopping
center . This argument of "unwanted secondary effects"
is not available to General Counsel and the Union since
there was no other store open on 24 May, the date when
the alleged unlawful act occurred . Thus, other businesses
could not be "emmeshed."
The General Counsel and the Union also rely on the
potential safety hazards to the pickets and public which
might occur with heavy inflowing traffic notwithstand-
ing that, at each island , there is room for the passage of
two cars abreast . Regardless, however, of the anticipated
hazards which Chief DeVietro reasonably foresaw, the
General Counsel 's complaint is so framed as to cause me
to find such arguments of anticipated traffic hazards to
be largely irrelevant. The removal of the pickets under
threat of arrest occurred only on 24 May and the com-
plaint addresses unlawful restraint of Section 7 rights
only on that day. Within a day-or 3 days-the pickets
had returned to the parking lot , the store front (doors)
and wherever else on private property, outside the store,
the pickets desired to leaflet and picket , including the is-
lands at the entrances. On 24 May, however, the date on
which the alleged unfair labor practice occurred because
of police action , the picketing -leafleting caused none of
the traffic problems anticipated in the testimony. The
complaint allegation regarding unlawful restraint of the
picketing presents no assertion of a continuing violation.
The problem raised by the pleading and proof is whether
the removal under threat of arrest on 24 May was
lawful . The answer to that question turns on whether the
Union was then engaged in protected conduct, and not
whether it thereafter was engaged in protected conduct.
Had there been other or similar police threats , or even if
the effect of the single threat had resulted in the Union
refraining from picketing on private property, the con-
tinuing nature of the threat might be inferred , requiring
scrutiny of the Union 's rights over a broader time focus,
i.e., on whether events after 24 May were relevant.
There is no evidence, for instance , that on 24 May,
any activity at the island at any time caused a traffic or
safety problem or was in any way a nuisance to the
public. Indeed, as I have noted above, before 24 May,
the Union voluntarily chose to handbill from the islands
with no safety problem incurred by the pickets and no
nuisance problems created for the vehicles or the public.
For instance, there was no suggestion of left -turning ve-
hicles being dangerously exposed on the expiration of the
19 Picket Frinzi , for instance, testified that "half, maybe more" of the
drivers , on 24 May stopped when he was at the island entrance (Tr. 461)
I accept his testimony
343
green light and there was no evidence of line jumping in
either of the right-turn deacceleration lanes.
While the General Counsel recognizes the significance
of the fact that on 24 May there was only one store open
(Br. p. 22), he defends only with the citation of Mont-
gomery Ward Co., 265 NLRB 60 (1968), in which the em-
ployer was the sole occupant of a shopping center and
the Board found an 8(a)( 1) violation where union hand-
billing was not allowed on private property . But that
case (a) involved only handbilling; and, more important,
(b) involved a consumer boycott by the employees in a pri-
mary dispute with their employer on the premises of a
neutral employer . Here, there was no dispute between
the employer and his employees . Neither of these distin-
guishing basic elements is present here, where there was
nonemployee-picketing , and area standards picketing at
that . These are fundamental differences : Hudgens v.
NLRB, supra; and Sears, Roebuck & Company, supra. I
have taken seriously the Supreme Court's Babcock &
Wilcox admonition that the difference between employ-
ees and nonemployees in their rights to trespass under
the protection of Section 7 of the Act is "one of sub-
stance." Hudgens v. NLRB, supra . Likewise , there is a
difference between handbilling and picketing , Montgom-
ery Ward Co., 265 NLRB 60 (1982) (Chairman Van de
Water, concurring).
The General Counsel proved that on 24 May, Supervi-
sor Motter telephoned the police and the police moved
the pickets from the parking lot to the street entrances,
i.e., from private to public property. The police action
was accompanied by threat of arrest for noncompli-
ance . 20 Assuming , arguendo, both that the police were
Respondents' agents in the removal of the pickets and
that, contrary to the Supreme Court's suggestion, area
standards picketing by nonemployees deserves protection
on the "spectrum" of Section 7 rights at the same
"locus" as organizational picketing by nonemployees,
Hudgens v. NLRB, supra: Sears, Roebuck & Co. v. San
Diego Carpenters, 436 U.S. at 190 (1978), the General
Counsel , nevertheless, pursuant to the Board 's analysis in
Giant Food Markets, Inc., 241 NLRB 727, enf. denied 633
F.2d 18 (6th Cir . 1980), has failed to sustain his burden-
his "heavy burden" (Sears, Roebuck & Co., supra at
190)-of showing that no other reasonable means of
communicating the Union's "area standards" message to
its intended audience exists (Sears, Roebuck, supra at
190). In view of the present facts , particularly the
narrow focus of the pleaded violation, the complementa-
ry narrowness of the the supporting evidence , proof of
adequate communication with the intended audience
from the islands , no traffic problems and the unique fact
that there was only one store open for business when the
police removed the pickets , and notwithstanding the gen-
erous terms of the lease concerning the "public" nature
of the parking lot and other facilities, I cannot conclude
that, on 24 May, with the pickets having already effec-
tively picketed from the entrance islands, with at least
20 To perfect a violation of Sec. 8 (a)(I), no such threat is required;
only a police "demand" addressed to the pickets to leave , Giant, at 729.
344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
one-half of the vehicles pausing at the street entrances2 t
with no possibility of enmeshing other shopping center
stores in the controversy , with the intended audience
clearly identifiable , "other means of communication
cannot be considered `reasonable ' in relation to their pos-
sible effectiveness ." Giant at 729.
In short , the Union , on 24 May, on this record, par-
ticularly balancing the several Giant criteria, could and
did adequately communicate an "undiluted" and effective
message to its audience from the public sidewalks and
the islands, without undue interference to the general
public, and the General Counsel , having the burden of
proof, Babcock & Wilcox, supra , has not proved other-
wise . 22 I therefore conclude that a balance of the Giant
criteria shows that no violation of Section 8(a)(1) by Re-
spondent Giant occurred on 24 May 1985 when the
police, with threat of arrest, removed the Union 's pickets
from the shopping center parking lot. The complaint al-
legation thereof should be dismissed.23
21 As Respondent observes (Br. p. 31 ), the Board , in organizational so-
licitation cases, has denied access to private property under Babcock &
Wilcox, supra, in which handbilling at entrances reached 9 of 25 vehicles
and in which, unlike here , reaching the occupants "presented some diffi-
culty ." Monogram Models, 192 NLRB 705, 706 ( 1971). Not only has the
Union here freely chosen to use the islands (whether or not private prop-
erty, Respondents have not objected to their use) and public entrances at
the street as distribution points for its handbills , but Respondents are not
obliged to provide the best location for distribution to the Union. Farah
Mfg. Co, 187 NLRB 601, 617 (1970). The issue therefore is whether the
Union 's messages can be effectively delivered from the islands and public
property . The Union has , in part , answered this question by freely choos-
ing the islands as picketing and distribution points. The fact that drivers
may not stop at the islands or sidewalks and may choose to ignore the
pickets does not militate in favor of an invasion of private property. The
pickets have the right , by their physical presence , by signs and by prof-
fered leaflets , to communicate with occupants of vehicles or pedestrians.
Nothing in the Act requires that vehicles (or persons) stop, much less roll
down their windows , converse with the pickets or accept literature. The
pickets must have the opportunity to reasonably communicate The occu-
pants of vehicles and pedestrians have no corresponding obligation to
stop or listen . To the extent, under Giant, picketing at entrances dilutes
the message because incoming vehicles at the entrances are more interest-
ed in negotiating a safe entrance than listening to the pickets ' message or
reading the signs, such Giant language must be read in the context of the
preceding condition "[Giant] is not the only store located in the shop-
ping center." Furthermore , the pickets voluntarly chose the islands all
during the picketing . They cannot now argue that the islands have
become ineffective points for communication.
22 Again , in view of this disposition , I need not rule on the "agency"
of the police since the Union , on 24 May , in picketing on private proper-
ty, was not then engaged in activity protected under Section 7 of the
Act.
23I have taken into account the existence of shrubbery-bordered, or
covered , islands of substantial size within the parking lot. Permitting the
pickets to have occupied these islands on 24 May might raise other prop-
erty and indemnification issues which, I believe , need not be resolved in
view of the above findings and conclusions : that the Union's area stand-
ard message was adequately delivered on the islands and sidewalks. The
same result should obtain for permitting the pickets to roam at will on
the parking lot. The ultimate finding of the unprotected nature of the 24
May picketing -handbilling herein is supported by the Supreme Court ob-
servation , regarding organizational trespassory activity, that the union's
right of access has "generally been denied except in cases involving
unique obstacles to non-trespassory methods of cummunication with the
employees " Sears, Roebuck & Co., supra at 205 fn . 41. In the instant case,
any uniqueness in the factual framework , i.e., only one open store , there-
fore militates further against allowing the right of trespassory access.
Moreover , whether or not, under the Board's view in Giant , supra, area
standards picketing is properly granted the same Sec. 7 protective locus
as organizational picketing under Babcock & Wilcox , supra, there can be
no question that the Supreme Court 's openly unsympathetic views of the
The State Court Litigation
The complaint, as amended , alleges in substance that
since 10 June 1985 , by maintaining and prosecuting its
retaliatory civil action to enjoin the Union 's picketing24
on the shopping center property , Respondents violated
Section 8(a)(1) of the Act.
The General Counsel, of course, could not, and did
not, allege that Respondents ' initiation of the action was
unlawful since his legal foundation must be supported
both in Sears, Roebuck & Co. v. San Diego Carpenters,
436 U.S. 180 (1978), which held , that notwithstanding
that area standards picketing is arguably protected under
Garmon , thus preempting state court jurisdiction yet,
since the store-owner (the injured party) could not file a
charge and thus bring the dispute before the Board. See
Longshoremen v. Davis , 476 U.S. 880 fn . 10 (1986), the
state court is not preempted from exercising jurisdiction
and ruling on the lawfulness of trespassory area stand-
ards picketing; and in the recent Bill Johnson's Restau-
rants v. NLRB, 461 U.S. 731 (1983), which held, that the
Board may not enjoin a pending state law suit , regardless
of retaliatory motive, unless the suit lacks a reasonable
basis in fact or law . Teamsters Local 705 (Emery Air
Freight), 278 NLRB 1303 ( 1986). There cannot be any
dispute that the initiation of the suit by Respondents was
entirely proper, for at that time, 20 May 1985, there was
no union charge filed (the Union 's ULP charge was not
filed until 10 June), 25 and Respondents could not them-
selves allege that the Union's trepass constituted an
unfair labor practice . In the absence of a union charge
filed with the Board , and refraining from the wholly un-
desirable self-help option of vi et armis eviction of the
pickets, Respondents could obtain an orderly resolution
of the question whether the Union had a right to remain
on their private property only by a proceeding in state
court . Sears, Roebuck & Co. v. San Diego Carpenters, 436
U.S. 180, 202.
Here, however, the Genera l Counsel argues that Re-
spondents, after filing of the Union's charge , have not
protected standing of area standards picketing in Sears, fn. 42 at 206, and
Hudgens, 424 U.S. at 513 , suggest that it be accorded no superior status
to organizational picketing in competition with trespassory access.
Similarly , I have taken into account the fact that a shopping center
parking lot , for purposes of balancing private property rights with statu-
tory rights, is in some ways "open to the public," whether by practice, or
as in this case , by lease. The instant parking lot, indeed , may not be quite
as "private" as the private parking lot driveway in Babcock & Wilcox
While one may concede that the instant shopping center parking lot does
not present the strongest case for the protection of "private property,"
certainly not as strong as in Babcock & Wilcox, yet Easton has not by its
lease so far turned the property into such a "public" area as to permit
First Amendment considerations to intervene . Hudgens v. NLRB, 424
U.S. 507, 512-514. The Union is not a third party beneficiary . Easton
may still interpret its lease so as to restrict the meaning of persons "doing
business" with the tenants Whether it could exclude picketing employees
of Giant is, or course, a far different matter
24 Again , Respondents filed their lawsuit on 20 May . The Union filed
its unfair labor practice charge on 10 June Hence, according to General
Counsel, preemption occurred only with the filing of the charge on 10
June; and it was only on and after 10 June that the General Counsel al-
leges that Respondents ' conduct became unlawful
25 To the extent that the Union argues (Br. p 22) that the initial filing
of the injunction action was part of the unfair labor practice , that argu-
ment is rejected It is contrary to law and to the allegations of the com-
plaint.
GIANT FOOD STORES 345
only not withdrawn their lawsuit, but have appealed the
Common Pleas court preemption ruling . Garmon , as Pre-
siding Judge Williams correctly held, and as the parties
conceded before him, Giant Food Stores v. Food & Com-
mercial Workers Local 1357, Penna. Court of Common
Pleas, 120 LRRM 2024, 2027 (1985), gives exclusive ju-
risdiction to the NLRB for the ultimate disposition of the
pickets' right to function on Respondent's property.26
Where, as here, the Union 's right to picket on Respond-
ent's private property is "arguably protected" by Section
7 of the Act, the rule preempting state court jurisdiction
to decide the trespass question (the identical matter
would be submitted within the 8 (a)(1) unfair labor prac-
tice hearing) is invoked with even greater force than
where the disputed conduct is merely "arguably prohibit-
ed" by the Act. In the former case, the constitutional
element of Federal supremacy is involved . Sears, Roe-
buck & Co., supra at 196-200.
As above noted , the General Counsel urges that (1)
with the 10 June filing of the unfair labor practice
charge, the state court 's jurisdiction to decide the tres-
pass question has been preempted ; (2) that with the par-
ties stipulating before the state court that there was no
mass picketing to block ingress-egress, no violence, in-
timidation or coercion , there was no basis on which to
invoke the state court's residual police powers on which
the state court injunction would rest ; and that (3) the Re-
spondents ' pressing their retaliatory case after the 10 June
filing of the charge , certainly in appealing the Common
Pleas final preemption decree, in the face of the stipula-
tions (based on Respondents' concessions) and Presiding
Judge Williams' findings (120 LRRM at 2026) of the ab-
sence of violence, threats, and blocking by mass picket-
ing, all demonstrate that, within the meaning of Bill
Johnson 's Restaurants v. NLRB, 461 U.S . 731 (1983), Re-
spondents were "prosecuting a baseless lawsuit with the
intent of retaliating against [the Union and its employee
members] for the exercise of rights protected by Section
7 of the NLRA," which conduct is an unfair labor prac-
tice enjoinable by the Board.
Respondents argue (Br. at 36 et seq .) principally that
its lawsuit was not preempted and thus was not "base-
less" within the meaning of Bill Johnson's Restaurants.27
Respondents also argue that there was no proof of the
necessary "retaliatory" motive, required in Bill Johnson's
Restaurants (461 U.S . at 737). They admit that their law-
suit was caused by the picketing but assert that this con-
sequence is not proof of "improper motive ." The short
26 The complaint allegation of an 8(a)(1) violation due to Respondents'
maintenance and prosecution of the injunction suit is not mooted by my
conclusion, above, that Respondents did not violate the Act when they
removed the pickets from their property Here, Respondents are contest-
ing the Pennsylvania court's conclusion that the trespass issue is for the
Board under Garmon. Hudgens and Sears, Roebuck The Respondents
continuation of a retaliatory suit, if baseless, would constitute a violation
of Sec 8(a)(1) whether or not the Union, under Sec. 7, was privileged to
picket in the parking lot. Put another way, Respondents' maintenance of
a lawsuit, retaliating against the Union's successful unfair labor practice
charge (the General Counsel issued a complaint), forcing the Union to
litigate a baseless preemption case, constitutes a statutory violation regard-
less of the merits of the Union's picketing rights
27 Respondents also repeat the argument, rejected above, that Re-
spondent Easton is not an "employer" within the meaning of Sec 2(2),
(6), and (7) of the Act.
answer is that "retaliatory intent" need not have an im-
proper motive and surely need not be accompanied, as
the further argument is made, by intimidation or punitive
desire . I conclude that Respondents' lawsuit was inten-
tionally "retaliatory," caused by and intended to limit or
eliminate the effectiveness of the Union 's handbilling and
picketing. The Supreme Court's test for retaliation, Bill
Johnson's Restaurants, 461 U.S. at 736, is a "but for" test.
That test is met here. There need be no proof of intimi-
dation or punitive design.
Were not my conclusions , below , on the preemption
issue dispositive on the issue of "baselessness ," I would
conclude that the allegation of baselessness is supported
by Respondents ' unsubstantiated pleading of "police
power" allegations (violence intimidation , blocking in-
gress-egress, etc .) to sustain state court jurisdiction, coun-
sel's admission that there was no evidence thereof, and
then stipulating to the contrary before Presiding Judge
Williams . With regard to the remaining basis for the ex-
ercise of state court jurisdiction , i.e., that the state court
restrain the trespass, Judge Williams, under Hudgens v.
NLRB, supra, concluded that the "trespass" and the
competing Section 7 protection were preempted matters
exclusively for the Board. He thus correctly declined
subject matter jurisdiction, 120 LRRM at 2028. See
Longshoremen v. Davis, 476 U.S. 380. Thus, the otherwise
clear application of Garmon preemption is further evi-
dence of Respondents' baseless lawsuit.
In Bill Johnson's Restaurants, supra at 737, the Su-
preme Court, on one hand held that "baseless litigation is
not immunized by the First Amendment right to peti-
tion." On the other hand, however, the Court held (461
U.S. at 736) that:
The filing and prosecution of a well-founded law-
suit may not be enjoined as unfair labor practice,
even if it would not have been commenced but for
the plaintiff's desire to retaliate against the defend-
ant for exercising rights protected by the Act.
In determining what steps the Board may take in eval-
uating whether a retaliatory lawsuit nevertheless has a
"reasonable basis," the Board, while it is not confined to
the four corners of the plaintiffs complaint , yet it may
not determine the merits of the state court claims if there
are material issues of fact, Bill Johnson 's Restaurants,
supra at 738 . While I am tempted, at the urging of the
General Counsel and the Union , in view of preemption
and other evidence , above, to find that Respondents' as-
sertions, in support of state court jurisdiction over the
trespass, are so inconsequential as to be frivolous, it is ul-
timately unnecessary for me to pass on this question.28
Bill Johnson's Restaurants nevertheless contains a fur-
ther restriction on Board action:
Just as the Board must refrain from deciding genu-
inely disputed material factual issues . . . it likewise
281 am saying that no reasonable lawyer would seek an injunction
based on an isolated instance of cursing and momentary stopping of a
customer to give him a leaflet, much less to prosecute an appeal based
thereon . See, for instance , Local 39 v. W. H. Bower Spangenberg, Inc., 120
LRRM 3455, 3456 (4th Cir. 1984)
346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
must not deprive a litigant of his right to have gen-
uine state law legal questions decided by the state
judiciary.
Among Respondents legal, as opposed to factual, ex-
ceptions to the state court decision is the state court's
very conclusion of preemption . There has been no court
decision on the merits of whether there has been a tres-
pass, only (for present purposes) that the Respondents'
lawsuit has been preempted . The lower Pennsylvania
court has held that the filing of the charge preempted
state court jurisdiction . Respondents have appealed the
question of preemption . Respondents argue that they
have a right to such an appeal and thus their continu-
ation of their action for injuction is not "baseless" within
Bill Johnson 's Restaurants.
There is no case cited to me suggesting that the Penn-
sylvania courts have resolved the question of when pre-
einption of state court subject matter jurisdiction occurs
upon the filing of a charge . 29 Respondents point to the
fact that this is the question on which Justices Powell
and Blackmun differ in Sears, Roebuck & Co., supra, and
on which Justice Brennan observed that the Supreme
Court has avoided holding that resort to the Board will
oust state court jurisdiction . Indeed , I regard the footnot-
ed problems raised in his Sears, Roebuck & Co. dissent by
Justice Brennan as dispositive here (Sears, Roebuck, Co.,
at 233 fn . 14). Justice Brennan particularly notes that one
of the open preemption questions is: "What if the Section
8(a)(1) charge is filed after the employer files the state-
court complaint . . ?"
Area standards picketing has been protected under
Section 7 at least since Hod Carriers (Calumet Contrac-
tors), 133 NLRB 512 (1961). Given the peculiar facts in
this case that there was only one store open on 24 May
(through 21 June) and that the pickets were successfully
communicating, on that day, more than 400 feet from the
store entrance , to 50 percent or more of incoming vehi-
cles (the intended audience) from their "pork chop
island" and from public property; and whether or not
this results , under NLRB v. Hudgens, supra, Giant, supra,
and Babcock & Wilcox, supra, in the conclusion that this
area standards picketing was unprotected , is it baseless
for Respondents to argue in the state court that, for in-
stance, state court jurisdiction , lawfully invoked on 20
May, should not be ousted by the filing of the 10 June
charge?30 And that it should not be ousted because the
29I necessarily conclude that the ousting of state court jurisdiction
under Garmon and the recent Longshoremen v. Davis, supra, is a question
the state court may consider and is thus a "genuine state law" legal ques-
tion within Bill Johnson 's Restaurants
so While the recent Longshoremen Y. Davis, supra, holds that a valid
claim of Garmon preemption forecloses the state court 's subject matter
jurisdiction and is not merely a waivable affirmative defense , I do not
regard that case as eliminating the existence of the Sears Roebuck excep-
tion which grants state courts jurisdiction over the trespassory invasion
of area standards picketing , even in the face of an otherwise valid claim
of Garmon preemption, where by virtue of the failure of the Union to file
a Board charge (and the inability of the injured landlord to file a charge),
delay in the Union's filing its charge, after the Respond-
ents filed their injunction suit, results in a 3-week, legally
"free ride" for the picketing especially since the charge
may have been filed only to defeat the state court juris-
diction?$1 While the legal question raised by Respond-
ents (whether the state Court's jurisdiction was ousted
by a subsequently filed charge) may be given short shift
in the Pennsylvania courts (and elsewhere), it cannot be
said, in view of the disputes among the justices in Sears,
Roebuck & Co., supra, and the explicitly open question
posed by Justice Brennan therein, that there does not
exist a "genuine" state law legal question within Bill
Johnson's Restaurants v. NLRB, 113 LRRM at 2654.
Thus, Respondents continuing their action and prosecut-
ing the state court appeal is not "baseless" within the
meaning of Bill Johnson's Restuarants.
It is therefore my recommended32
ORDER33
That the complaint be dismissed in its entirety; provid-
ed, however, that the Board retain jurisdiction of the
complaint allegation concerning Respondent's retaliatory
lawsuit, commenced 20 May 1985, so that it may dispose
thereof (including a conclusion that Respondent violated
Section 8(a)(1) of the Act) upon prompt notification by
any party of a final, binding determination or resolution
of the merits thereof by the Commonwealth of Pennsyl-
vania or otherwise.
there is no forum in which the injured landlord may seek relief. Here,
there was charge filed after the intitation of the state court action. Here,
for 20 days (May 20-June 10) the injured landlord was without Board
remedy. Is the application of Longshoremen Y. Davis automatic? Does the
filing of the charge on June 10, ipso facto oust state court junsdicition
because, if so, it "... [forecloses ] the state court 's very jurisdiction to
adjudicate." Longshoremen Y. Davis, supra.
a i Respondents argue (Br p. 38), using the language of Justice Black-
mun (Sears, Roebuck & Co, 436 U. S. 180, 210) that "the real question is
who should bear the burden of delay" where a charge is filed in the face
of a state court injunction action . the employer, dung the time before
issuance of Board complaint or dismissal of the charge (where the state
action is preempted or halted ), or the Union where the state court issues
a restraining order pending Board decision and limits the place of picket-
ing? The extraordinary federal injunctive writ under NLRB v. Nash-
Finch Co., 404 U S 138 ( 1971), is available to the Board if any state court
order is deemed to intermediately interfere with the Board 's jurisdicition
or processing of the charge Justice Blackmun 's statement of the issue im-
plies preemption upon the Board's issuance of complaint . Justice Powell,
above , warmly disagrees and Justice Brennan notes that that issue is unre-
solved
92 1 have included in the record, on posthearing motions by and insist-
ence of, Respondent and the General Counsel, along with CP-C.G. Exh.
3, certain unworthy correspondence between Respondents and the Gen-
eral Counsel inconsistent with the high quality of the litigation and their
excellent briefs.
33 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.