L & L Shop Rite, Inc.

National Labor Relations Board - Board Decisions

Sep 24, 1987

285 N.L.R.B. 1036 (N.L.R.B. 1987)

1036 DECISIONS OF THE NATIONAL LABOR. RELATIONS BOARD
L & L Shop Rite, Inc. and Retail Store Employees
Union, Local 36, ' United Food and Commercial
Workers International Union , AFL-CIO. Case
7-CA-17096
24 September 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 28 July 1981 Administrative Law Judge Wil-
liam F. Jacobs issued the attached decision. The
General Counsel and the Union filed exceptions
and supporting briefs and the Respondent 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,1 and
conclusions only, for the reasons set forth below
and to adopt the recommended Order.
In September 19792 Retail Store Employees
Union, Local 36, United Food and Commercial
Workers International Union, AFL-CIO (the
Union) decided to institute a boycott of the ap-
proximately 13 `Shop Rite supermarkets in the Lan-
sing, Michigan area. To this end, on 5 September
the Union sent a letter to the, president of L & L
Shop 'Rite, Inc. (the' Respondent) disclaiming inter-
est in representing the Respondent's employees and
stating that activities in which the Union thereafter
would engage, including informational picketing,
distribution of printed materials, or the boycotting
of the Respondent, were "solely intended merely
to notify the public of the store's non-union status."
On 6 September an identical letter was sent to the
Respondent from "United Food and Commercial
Workers Local 951:
On 13 November the Michigan State AFL-CIO
sent letters addressed to all union members in the
greater Lansing 'area, informing them that the
Union and Local 951 intended to conduct informa-
tional picketing at the 13 Lansing area Shop Rite
stores beginning on 19 November. The letter fur-
ther stated that its purpose was "to advise you,
your fellow union members and the consumer, of
the blatant anti-union attitude of the owners of the
I The Respondent has excepted to some of the judge's credibility reso-
lutions The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings
2 All subsequent dates are in 1979
Shop Rite Markets." The letter went on to quote
language that it characterized as "antiunion" con-
tained in the Shop Rite employee handbook, in-
cluding statements that Shop Rite "is a non-union
Company" and "oppose[s] unionism," that "experi-
ence shows that where there are unions, there is
often trouble, strife and discord," and that "[n]o
person will be allowed to carry on union organiz-
ing activities on the job . . . ." On 19 November
the Union issued a press release announcing that
many Lansing area union members and the Union
were picketing Shop Rite stores "in order to fur-
ther emphasize our concern over the anti-Union at-
titude of Shop Rite management." The press re-
lease quoted some of the same passages from the
Shop Rite employee handbook that had been
quoted in the 13 November letter. The press re-
lease also stated that the Union had "no interest in
organizing Shop Rite employees through this
action . . . ."
As part of its boycott effort, the Union began
picketing and handbilling at the Respondent's su-
permarket on 19 November. The supermarket is
one of four stores located in a small shopping
center at the intersection of ,Logan and Jolly
Streets, heavily traveled streets that have speed
limits of 35 miles per hour. The supermarket and
an adjacent hardware store share the same build-
ing, which is set back about 130 feet from Logan
Street. A drugstore and a beauty salon occupy a,
building separate from, and at a right angle to, the
hardware store and supermarket. A parking lot that
extends from the front of the supermarket and
hardware store to the public sidewalk next to
Logan Street is used by customers of all four
stores. The parking lot has two entrances from
Logan Street and one from Jolly Street. The park-
ing lot and the land on which the four stores are
situated are owned by the Respondent.
The picketing and handbilling activity that took
place at the Respondent's ,supermarket was done by
union staff,people who were not employees of the
Respondent. Eight to fifteen pickets arrived in late
morning on 19 November and began walking with
picket signs on the public sidewalks that parallel
Logan and Jolly Streets. The public sidewalk adja-
cent to Logan Street is 5 feet wide, and there is a
9-foot-wide grassy area between the sidewalk and
the street which is not owned by the Respondent.
Signs bearing three slightly different slogans were
used throughout the picketing. One variation
stated: "L & L Shop Rite Market Anti-Union.
Please Do Not Patronize. United Food and Com-
mercial Workers Locals 36 and 951, AFL-CIO."
The second stated: "Boycott Anti-Union L&L
Shop Rite. Please Do Not Patronize. UFCWU, 36
285 NLRB No. 122
L & L SHOP RITE
and 951, AFL-CIO." The third variation began
with a space for insertion of another union's name
and ' then stated: "Supports The Boycott of Anti-
Union L & L Shop Rite Market. Please Do Not
Patronize." Each sign also contained the following
additional language: "This sign is not directed to
the employees of the above-named store or to em-
ployees of any other employer doing business with
this store, and is directed solely to the consumer
public."
The pickets also distributed handbills to motor-
ists entering the parking lot. At the top, each hand-
bill stated : "Boycott Anti-Union Shop Rites. Please
Do Not Patronize." This was followed by a list of
the names and addresses of 13 Shop Rite supermar-
kets, including the Respondent. Below this list was
stated: "Shop At Union Stores," following which
there was a list of the names and addresses of a
number of other supermarkets. "United Food and
Commercial Workers Union, Locals 36 and 951"
appeared at the bottom of the handbill. Also, the
following statement was printed down the side of
the handbill: "This leaflet is not directed to the em-
ployees of the named stores or to the employees of
any other employer doing business with these
stores, and is directed solely to the consumer
public."3
One picket testified that during the picketing on
19 and 20 November 5 to 10 percent of. the motor-
ists entering the parking lot stopped to receive
handbills, while another picket testified that 25 per-
cent of the motorists accepted, handbills. There also
was testimony that motorists stopping to accept
handbills caused traffic to back up onto Logan and
Jolly Streets, There additionally was testimony that
some of the traffic backup was caused by the
rather leisurely pace at which pickets at the park-
ing lot entrances moved out of the way when mo-
torists started to enter.
As the judge recounts, shortly after the picketing
began the Respondent's official warned the pickets
to stay on the public sidewalk and not to enter the
parking lot. Two pickets then began picketing and
distributing handbills in the parking lot directly in
front of the Respondent's supermarket. When they
ignored the instruction of the Respondent's owner
to get off his property, he summoned the police.
The police arrived and told the pickets in front of
s The pickets also had a leaflet prepared for distribution to truckdriv-
ers, vendors, and salesmen advising them of the reason for the picketing;
stating that it was not a strike , and asking them to proceed with their
business as though no picket line existed. Additionally, the pickets had a
leaflet prepared for distribution to Shop Rite employees in case any ap-
proached them, stating that the picket line was not instituted to promote
organization of their store but rather to publicize the antlumon attitude of
Shop Rite management and therefore the pickets could not provide union
authorization cards or even discuss the benefits of union membership for
fear that the intent of their picketing might be misconstrued
1037
the supermarket, now numbering four, that they
would be arrested unless they left the parking lot.
The four pickets then retreated to the public side-
walk, joining the others who had remained there,
where they continued their activities. Many of the
pickets left by early afternoon, but about 4 p.m. 25
to 30 pickets appeared and resumed picketing and
handbilling on the public sidewalk. They continued
this activity until about 6' p.m.
The following day around noon about 40 pickets
again took up picketing and handbilling on the
public sidewalk. Two pickets began picketing and
handbilling in the parking lot. Once again, they dis-
regarded the Respondent's, order to leave the prop-
erty. This time, however, when the police were
summoned, they declined to order the pickets to
leave the private property because the Union, in
the meantime, had obtained the agreement of the
county prosecutor's office that the pickets had a
right to carry on their activities in the Respond-
ent's parking lot unless they caused a fracas or
other problems. After the- police .left, additional
pickets moved their activities from the public side-
walk to the parking lot, including the area in front
of the Respondent's supermarket.
The complaint alleges that the Respondent vio-
lated Section 8(a)(1) of the Act by demanding that
the pickets cease distributing handbills to the public
entering the parking lot, demanding that the pick-
ets leave the parking lot, threatening them with
arrest if they did not do, so,, and causing their re-
moval from the parking lot. The judge recom-
mended that the complaint be dismissed because
the Respondent's allegedly violative conduct had
insignificant impact and was largely rendered
meaningless because'' the Respondent ultimately
ceased trying to exclude the pickets from its prop-
erty after the police declined to order the pickets
to leave.
We agree with the judge's conclusion that the
complaint should be dismissed. We do not, howev-
er, adopt the reasons he provides for reaching this
conclusion. Rather, we' conclude that the complaint
should be dismissed only on the basis of the analy-
sis set forth in our recent decision in Fairmont
Hotel, 282 NLRB 139 (1986).
In Fairmont, the Board reviewed NLRB v. Bab-
cock & Wilcox Co., 351 U.S. 105 (1956), and its
progeny and determined that in cases involving
conflicts between Section 7 rights and property
rights, the Board's task is "first to weigh the rela-
tive strength of each party's claim." The Board
found:
If the property owner's claim is a strong one,
while the Section 7 right at issue is clearly a
1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
less compelling one, the property right will
prevail. If the property claim is a tenuous one,
and the Section 7 right is clearly more compel-
ling, then the Section 7 right will prevail. Only
in those cases where the respective claims are
relatively equal in strength will effective alter-
native means of communication become deter-
minative.
Fairmont Hotel, supra at 142 (fn. omitted). Factors
that may affect the relative strength or weakness of
an asserted property right include the following:
the use to which the property in question is put,
any restrictions placed on public access to the
property or to the facility located on the property,
and the size and location of the private facility. By
way of example, the Board noted that "a single
store surrounded by its own parking lot provided
exclusively for the convenience of customers will
have a significantly more compelling property
right claim" than "the owner of a large shopping
mail who allows the general public to utilize his
property without substantial limitation." Id. at 141.
Concerning the Section 7 right, factors that may
affect the relative strength or weakness of such a
right include the, following: the nature of the right
asserted, the purpose for which it is being asserted,
the employer that is the target of the activity, the
situs of the activity, the relationship, of the situ's to
the target, the intended audience of the' activity,
and, possibly, the manner in which the right is
being asserted. Id. at 142. By way of example, the
Board noted that "organizational rights and the
right to engage in primary economic activity ' at the
situs of a dispute may be viewed as more compel-
ling than handbilling and other informational activ-
ity at locations other than the primary situs." Id. at
142.
Applying the Fairmont, analysis to the facts of
this case, we find the property right presented here
to be relatively modest. The Respondent's super-
market, is,7in a small shopping center that the gener'-
al public is invited to patronize. A customer park-
ing lot is provided directly in front of the super-
market and the other stores, and there are three en-
trances to the parking lot to provide ready access
from the adjacent public streets. No measures are
taken to restrict who enters through these en-
trances. Moreover, the Respondent's supermarket
shares the parking lot with the three other stores in
the shopping center. Additionally, there is no evi-
dence that the Respondent or any other merchant
at the shopping center takes measures to ascertain
that everyone who walks in front of the stores is a
customer of one of them. Thus, it is apparent, and
we infer, that the shopping center parking lot, in-
cluding the portion immediately in front of the Re-
spondent's supermarket, is open to virtually anyone
and certainly to customers of any of the four stores
in the shopping center. Inasmuch as access to the
shopping center parking lot, including the portion
in front of the supermarket, is so unrestricted and,
we infer, is commonly used by persons who are
not customers, employees, or suppliers of the Re-
spondent's supermarket, we conclude, that the Re-
spondent has retained only a limited property right
claim to the shopping center parking lot, including
the portion directly in front of the supermarket.
The panel members disagree on their assessment
of the Section 7 right presented here.4 We agree,
4 Chairman Dotson and Member Johansen conclude that the Respond-
ent was entitled to rely on the letter the Union sent the Respondent in
early September In that letter the Union disclaimed interest in represent-
ing the Respondent's employees and stated that activities in which the
Union thereafter would engage, including informational picketing, distri-
bution of printed materials, or the boycotting of the Respondent, were
"solely intended merely to notify the public of the store's non-Union
status " The Union's picket signs, handbills, and conduct of the pickets
were consistent with the prior disclaimer of any present intent to orga-
nize or otherwise communicate with the Respondent's employees For
the purpose of assessing the nature and strength of an asserted Sec 7
right under Fairmont, Chairman Dotson -and' Member Johansen believe
that the Board should not go beyond the claim publicly asserted to divine
some ulterior or incidental objective in the union activity, unless that ob-
jective would remove the Act's protection They agree with their con-
curring colleague that in other areas of Board law, where there is a statu-
tory mandate to examine whether conduct is unlawful because it entails
specifically proscribed objectives, the Board must examine overall con-
duct in determining the validity of a disclaimer There is no correspond-
ing mandate to question the validity of a-union's conduct disclaiming a
particular Section 7 interest when examining whether an employer's con-
duct is unlawful in denying access to private property On the contrary it
would be both impractical and inequitable to require, as their concurring
colleague suggests, that an employer consider the possibility of hidden,
unstated, even disclaimed Sec 7 interests superior to the interests public-
ly professed when that employer decides whether it may lawfully deny
access In this context, the clearest and fairest Board rule governing the
conduct of labor relations is that an employer should be entitled to rely
on a union 's unambiguous disclaimer of any Sec 7 claim superior to the
one apparently asserted In accord with this view, Chairman Dotson. and
Member Johansen would find that the Sec 7 claim asserted by the Union
here did not involve the specifically disclaimed recognitional or organiza-
tional interest Their assessment of the nature and strength of the Union's
claim is based on the objective communicated to the employer, that is,
the Union's informational campaign to protest alleged antiunion activities
and to promote a consumer boycott The weight of this Sec 7 claim is
not significantly different from that given to area standards protest activi-
ty The protest of antiunion attitudes and of nonunion employment stand-
ards both serve generally the institutional interests of a union and its
members. Such activity' bears little relationship to a targeted nonunion
employer's employees and consequently is of limited significance as it is
not at the "core of the purpose for which the NLRA was enacted."
Sears, Roebuck & Co Y San Diego County Council of Carpenters, 436 U S
180, 206 fn 42 (1978)
Based on the foregoing assessment of the Union's Sec 7 activity,
Chairman Dotson finds that the Respondent's property claim outweighs
the Union's Sec 7 claim Consequently, Chairman Dotson would find
that the Respondent's property right, although not especially strong,
should nevertheless, under the Fairmont test, prevail over the Union's
Sec 7 right without consideration of reasonable alternative means of
communication, because the Respondent's property right clearly out-
weighs the very modest Sec 7 right presented here
Member Johansen does not evaluate the Sec 7 claim apart from the
factor of reasonable means of communication Rather, he views this
factor as significant in assessing the nature and strength of the Sec 7
claim Fairmont, supra He agrees with Member Babson that both the
Continued
L &° L,SHOP RFTE -'t. ,', 1039
J
however, that the Union 's Section 7 claim is,not
clearly more compelling than the,