Polly Drummond Thriftway, Inc

National Labor Relations Board - Board Decisions

Jan 17, 1989

292 N.L.R.B. 331 (N.L.R.B. 1989)

POLLY DRUMMOND THRIFTWAY
Polly Drummond Thriftway , Inc and Local No
1349, United Food and Commercial Workers
International Union Case 4-CA-12947
January 17, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On June 21, 1983, Administrative Law Judge
Stanley N Ohlbaum issued the attached decision
The Respondent filed exceptions and a supporting
brief,' and the General Counsel and the Charging
Party filed answering briefs
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions as modified and to adopt the recom-
mended Order
The Respondent operates a retail supermarket in
the Polly Drummond Shopping Center in New
Castle County, Delaware The shopping center
consists of 17 units, of which the Respondent's is
the largest building The shopping center is bound-
ed on two sides by public roads There is a grassy
area between the roads and the shopping center's
parking lot From the front of the parking lot,
where it abuts the grassy area , to the back of the
parking lot, where it abuts the sidewalk in front of
the Respondent's supermarket, is a distance of 156
feet There are three entrances to the shopping
center There is no sign or any other posted restric-
tion concerning who may enter the shopping
center or use its sidewalks or parking area
The Respondent occupies its building pursuant to
a sublease with the previous tenant, Great Atlantic
& Pacific Tea Company, Inc (A&P) A&P operat
ed a supermarket at the location until January
1982 The Respondent subleased the premises in
April 1982 s
The Union had a collective-bargaining agree-
ment with A&P prior to A&P's closure 4 The
' The Respondents request for oral argument is denied as the record
exceptions and briefs adequately present the issues and the positions of
the parties
2 The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
3 All dates are in 1982 unless otherwise indicated
4 The Union represented A&P s clerks and checkers
331
Union, however, did not represent the Respond
ent's employees and did not have a contract with
the Respondent The Union investigated the Re-
spondent's wages and fringe benefits by talking
with job applicants at the Respondent's supermar
ket and employees of another area supermarket
owned by Mike Zingo, the owner of the Respond
ent The Union determined that the Respondent
was paying wages "way below" the area standards
and was providing virtually no fringe benefits By
letter dated May 4 and signed by its president, the
Union informed Zingo of its findings and stated it
would picket the Respondent because of the Re
spondent's alleged failure to maintain area stand
ards wages and fringe benefits The Respondent,
which had not yet opened its supermarket for busi-
ness, did not respond to the Union's letter
On May 11, the day the Respondent opened its
supermarket, the Union began picketing on the
sidewalk directly in front of the store Although
the Respondent's supermarket was not scheduled to
open until 10 a in, the Union commenced picketing
at approximately 7 a in Four persons carried signs
requesting customers not to patronize the Respond
ent 5
THRIFTWAY
Maintains Substandard Wages
and Conditions
Do Not Patronize
Support Our Members In Their
Effort to Make A Living Wage
UFCW LOCAL
No 1349
Shortly thereafter, Supermarket Manager James
Sarver came out of the store and told the pickets,
none of whom was an employee of the Respond
ent, to move away from the front of the store and
to move a car out of the parking lot Soon thereaf
ter, Zingo arrived at the supermarket and told the
pickets to "get out " None of the pickets responded
to either Sarver ' s or Zingo 's remarks At approxi
mately 9 a in , Sergeant Sacco of the Delaware
State Police, in response to a telephone call from
Zingo , arrived at the store After speaking with
Zingo, Sergeant Sacco told the pickets that Zingo
had complained about their being on the sidewalk
in front of the store Sergeant Sacco also informed
the pickets that if they did not move they could be
arrested for disorderly conduct, criminal trespass,
or loitering Sacco suggested that the pickets sta-
tion themselves at the shopping center entrance
closest to the supermarket Heeding Sacco's warn
ing, the pickets left the sidewalk and moved their
5 The signs stated
292 NLRB No 44
332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
picketing to this entranceway. The Union contin-
ued its picketing of the Respondent at the shopping
center entrance for about 3 weeks. The shopping
center's property manager did not receive any
complaints from tenants of the shopping center
about the picketing on the sidewalk or at the en-
tranceway.
The judge concluded that the Respondent violat-
ed Section 8(a)(l) of the Act by prohibiting the
union pickets from access to the sidewalk directly
in front of the Respondent's supermarket. The
judge found that the Union's right to engage in
area standards picketing was derived both from the
Act and the first amendment to the Constitution
and thus should not be limited except in compelling
circumstances. In addition, the judge found that the
Respondent lacked a private property interest that
would entitle it to exercise control over the side-
walk in front of its supermarket. Thus, the judge
concluded that the Respondent's property rights
must yield to the Union's Section 7 rights.
We agree with the judge that the Respondent's
threats to exclude, and its actual exclusion of, pick-
ets from the sidewalk in front of its supermarket
violated Section 8(a)(1) of the Act, but only for the
following reasons.6 The Respondent's property
rights at the shopping center facility were derived
solely from its sublease with A&P, which granted
to the Respondent all rights conferred on A&P
pursuant to the terms of A&P's lease with the
shopping center owner. That lease conveyed to
A&P for a term of years a specified store building
at the shopping center "with common rights to the
parking lot . . . together with the use in common
with other occupants of said Center of the parking
spaces, areas, sidewalks , parking facilities, malls
and any and all finished or improved areas outside
all buildings." The lease obligated the shopping
center owner to keep the sidewalks "clean and free
and clear of encumbrances, obstructions, debris, ice
and snow." The lease further provided that the
shopping center owner "assume[d] all duties, re-
sponsibilities , and liabilities in regard to mainte-
nance, repairs, replacements, operation , supervi-
sion , use and control of and to said spaces, parking
areas, passageways , sidewalks, entrances, [and]
exits."
6 We agree with the judge that the Union 's picketing constituted area
standards picketing, which is protected under the Act. In so doing, how-
ever, we find it unnecessary to rely on the judge 's analysis to the extent
he finds that area standards picketing is protected by the first amendment
and warrants more protection than organizational picketing.
We also do not rely on any finding implicit or otherwise that the Re-
spondent acted unlawfully in the course of a May 13 incident described
in the testimony of picketer Donald C. McKay . The complaint did not
allege this incident as a violation , and the judge admitted the evidence
only as background.
We agree with the judge that this lease did not
convey to A&P the sidewalk in front of the leased
store building. Rather, it granted to A&P only the
right to use the sidewalk in common with the other
occupants of the shopping center. Further, under
the lease, "all duties, responsibilities, and liabilities
in regard to . . . control of . . . sidewalks" were
assumed by the shopping center owner. Under its
sublease with the Respondent, A&P conveyed to
the Respondent no greater interest than that which
A&P itself possessed. Accordingly, we find it clear
that the lease and sublease did not grant the Re-
spondent a property interest giving it authority to
exclude anyone from the sidewalk in front of its su-
permarket. The Respondent merely had a nonex-
clusive right to use the sidewalk, while control of
the sidewalk remained with the shopping center
owner. Thus, while the sidewalk in front of the Re-
spondent's rented supermarket building was private
property, it was not the Respondent's property,
and the Respondent lacked the right to exclude
anyone from it.7
Under these circumstances, the Board's decision
in Barkus Bakery is controlling.8 There, the re-
spondent, a corporation, operated a bakery on
premises leased to it by the respondent's owner, an
individual. The owner also owned the adjacent
parcel of land, which he leased to the proprietor of
a tavern. In the latter's lease, the owner reserved
for the bakery and its employees "the right of . . .
use in common with [the] Lessee of the parking
and passage areas of the demised premises for the
purpose of traversing the area and parking there-
on."9 Pursuant to this reservation, employees of
the bakery parked their vehicles on the property
leased to the tavern operator. After union organiz-
ers began distributing leaflets to employees of the
bakery in this parking area, the respondent ordered
the organizers to leave the premises. When they
did not do so, the respondent summoned the
police. After some discussion, however, the police
7 The Respondent relies in part on a clause of the lease providing that
the lessee "may peaceably and quietly have, hold and enjoy ... the de-
mised premises , the areas, spaces , parking facilities , passageways, [and]
sidewalks ." This provision, a convenant of quiet enjoyment, is merely a
promise by the lessor that the lessor possesses good title to the property
and that for the term of the lease the lessee will not be evicted by an-
other having better title to the property. Thus, it is merely an assurance
against defective title, and it gives the lessee a cause of action against the
lessor if the lessor's title turns out to be defective and the lessee is evict-
ed. It does not grant the lessee a right to take action against others who
disturb the lessee 's "quiet enjoyment" of the premises . Further, it is not a
promise to the lessee that others will not "disturb" the lessee in the con-
ventional sense . See generally 20 Am . Jur. 2d Convenants §§ 97-98
(1965). Accordingly , the Respondent's reliance on this convenant to
show that it had a property right to exclude the pickets from the proper-
ty is misplaced.
8 282 NLRB 351 (1986), enfd . mem. sub nom . NLRB v. Caress Bake
Shop, 833 F.2d 306 (3d Cir. 1987).
9 Id. at 352.
POLLY DRUMMOND THRIFTWAY
left and organizers remained The judge, whose de-
cision was adopted by the Board, 10 found that the
respondent did not control the parking lot from
which it had attempted to eject the union organiz
ers and that the lease gave the respondent parking
privileges on the property but not the right to exer-
cise dominion over strangers on it Accordingly,
the judge concluded, and the Board agreed, that
the respondent violated Section 8(a)(1) of the Act
by attempting to exclude organizers from the park-
ing lot, thus interfering with protected organizing
activity 11
Barkus Bakery is indistinguishable from the
present case Here, as there, an employer interfered
with protected activity by attempting to exclude
union representatives from property adjacent to the
employer's property that the employer had a right
to use, but over which the employer possessed no
property right giving it control Indeed, in the
present case the interference was greater, in that
the Respondent succeeded in excluding the union
representatives from the adjacent property It is
clear, therefore, that by threatening to exclude, and
by excluding, the pickets from the sidewalk in
front of its supermarket the Respondent interfered
with protected activity in violation of Section
8(a)(1) of the Act
This conclusion is consistent with our recent de-
cision in Jean Country 12 There, in setting forth an
analysis for resolving conflicts between property
rights and rights granted under Section 7 of the
Act, we noted that, as a threshold matter
[T]here is an initial burden on the party claim-
ing 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 objections to
having union pickets outside its establishment
does not in itself rise to the level of a property
interest
Jean Country, above, at 13 fn 7 It is apparent that
the threshold showing required under Jean Country
has not been made here Accordingly, we adopt
the judge's conclusion that the Respondent violated
Section 8(a)(1) of the Act by threatening to ex-
clude, and excluding, the union pickets from the
sidewalk in front of its supermarket
10 In adopting the judges decision the Board did not rely on the
Judges finding that the union organizers never set foot on the respond
ents property Rather the Board relied on the fact that the respondent
was attempting to prevent the organizers from distributing literature any
where in the parking lot 282 NLRB at 351 fn 2
11 Id at 354
12 291 NLRB 11 (1988)
ORDER
333
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Polly
Drummond Thriftway, Inc, New Castle County,
Delaware, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order
Marvin Weinberg Esq for the General Counsel
Martin R Lentz Esq (Pelino & Lentz), of Philadelphia
Pennsylvania for the Respondent
Howard S Simonoff Esq (Tomar Parks Seliger Simonoff
& Adourian), of Haddonfield New Jersey, for the
Charging Party
DECISION
Preliminary Statement
STANLEY N OHLBAUM , Administrative Law Judge
This proceeding 1 under the National Labor Relations
Act (Act), was litigated before me in Philadelphia Penn
sylvania, on December 1, 1982 All parties were repre
sented by counsel throughout, and were afforded full op
portunity to present evidence and contentions , as well as
to submit posttrial briefs and proposed findings and con
clusions received after unopposed application for time
extension by January 26 1983 The latter as well as the
entire record , have been carefully studied
The basic issue presented is whether peaceful nonor
ganizational area standards informational union picket
ing on a sidewalk outside of a leased store in an open,
unenclosed non mall shopping center may be prevent
ed by a store lessee without violating Sectin 8(a)(1) of
the Act
On the entire record2 and my observation of the testi
monial demeanor of the witnesses I make the following
FINDINGS AND CONCLUSIONS
I JURISDICTION
1
At all material times Respondent Polly Drummond
Thriftway Inc a Delaware corporation has operated a
retail supermarket store at Polly Drummond and
Linden Hill Roads3 in Newark Delaware with annual
gross revenues exceeding $500 000, and interstate annual
merchandise purchases and receipts exceeding $5000 di
rectly in interstate commerce
I find that at all material times Respondent has been
and is an employer engaged in interstate commerce
within the meaning of Section 2(2) (6), and (7), and the
i Complaint issued by the Regional Director for Region 4 on July 1
growing out of a charge filed against Respondent Employer on May 19
as amended June 21 1982 by the above Union The General Counsels
unopposed posttrial motion (G C Br 2 fn 4) to deem his complaint tech
nically amended to conform to the proof in regard to the filing and serv
ice of the amended charge (in evidence) is granted
2 Trial transcript as corrected in accordance with parties undated stipu
lation filed on January 19 1983 incorporated into the record
3 Complaint par 2(a) admitted in the answer incorrectly identifies
Linden Hill or New Linden Hill as New London Road See infra fn 4
e
334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Charging Party Union is a labor organization as defined
in Section 2(5) of the Act
ALLEGED UNFAIR LABOR PRACTICES
As has been indicated , this case involves the propriety
of peaceful nonorganizational , area standards ' informa
tional picketing by a labor organization on the public
sidewalk of an unenclosed suburban collection of retail
stores called a shopping center ' The controlling facts
are largely undisputed
A Facts as Found
1 Locus
The locus of the eqisode to be described , known as
"Polly Drummond Shopping Center, on Polly Drum
mond and Linden Hill (or New Linden Hill) Roads4 in
New Castle County , Delaware , is an offroad aggregate
of 15 retail stores including two banks and three
eateries/drinkeries, with a nearby separate building con
taming a school and a karate establishment, and an
other separate nearby 4 story office building (Jt Exh 1 )
All have common or shared public sidewalks and a 366
space parking area , of which 115 spaces (including a
public bus stop ) are in front of and adjacent to Respond
ent s store The sidewalk in front of Respondents store is
around 6 or 7 feet wide, with a 10 foot 10 inch by 34
foot 4 inch entrance vestibule" projecting onto the side
walk at the store s entrance (Jt Exh 1 ) The entrance/
exit doors to Respondents store are however, located
on the sides and not the front of this vestibule (R Exh 3)
Conventional5 access to this aggregate of retail stores
and other establishments-including the banks school
and commercial office building-denominated a shop
ping center , is from two lane vehicular public roads or
highways There is no paved sidewalk or pedestrian
walkway as such abutting the outer or inner periphery of
the shopping center, but only steadilly trafficked paved
motor (and pedestrian) roads or highways on the outside
and trafficked motor (and pedestrian) roads and parking
areas (including a public bus stop in the parking area in
front of Respondents store) on the inside (G C Exhs
3A, B and C R Exhs 3 4 and 5
2 Episodes
Local No 1349 United Food and Commercial Work
ers International Union (Union or Charging Party),
which represents and bargains collectively on behalf of
most food industry and supermarket employees (except
butchers) in the Delaware Pennsylvania area had a col
lective labor agreement covering employees of the super
market store with Great Atlantic & Pacific Tea Compa
ny, Inc (A&P) until the latter (A&P) closed that store
in early 1982 and it was taken over by Polly Drummond
Thriftway, Inc (Respondent), which commenced operat
ing at wage scales way below what the industry stand
and was in the area and with virtually no fringe ben
efits " 8 For this reason after a fruitless discussion be
tween the Union and Respondents owner, "Mike
Zingo , on May 4 , 1982, the Union sent Respondent a
letter ? stating
Dear Mr Zingo
It has been determined that your company does
not maintain wages and conditions of employment,
including fringe benefits established through collec
tive bargaining by this union Your reduced sub
standards of employment threatened our members
in their efforts to keep the wages and benefits they
have won over the years
As a result we shall picket your stores8 to notify
potential customers that you operate under sub
standard conditions of employment We are not
seeking to cause or induce any person , in the course
of his employment , to cease doing business or work
ing for you Should that happen , please call me and
I shall do whatever I can to correct that situation
Our efforts are aimed at your customers
We wish to make it clear that we are not seeking
recognition by your company as bargaining agent
for any of your employees In the event you can
demonstrate that you meet our area standards, we
shall remove our picket line
Very truly yours,
/s/ Norman L Tyrie
Norman L Tyrie
President
NLT de
cc Gary Duckett
Mid Atlantic Region
Because the Union received no response to this letter,
it commenced picketing on the public sidewalk outside
of Respondents store when it opened on May 11 1982
At no time was there any leafletting On the opening
day, the Union utilized four pickets thereafter two to
six The picket signs printed in heavy dark letters on
white cardboard approximately 22 inches long and 14
inches wide Q t Exh 2), carried on the pickets chests by
strings suspended around their necks (R Exhs 5 and 6)
state
4 Location so shown on stipulated sketch (Jt Exh 1) The ground
lease (R Exh 2) and sublease (R Exh 1) identify Linden Hill as New
Linden Hill Road
5 I e for aught that appears it may theoretically be possible for an oc
casional pedestrian to traverse the broad circumferential grassy areas and
walk beyond
6 Uncontroverted testimony of Union Secretary Treasurer Joseph Otto
r G C Exh 2
8 Respondent maintains only one store-that here in question-in the
Polly Drummond Shopping Center which is in or near Newark Dela
ware Its owner Mike Zingo maintains another such establishment under
the name Z Mart Thriftway in Wilmington Delaware
POLLY DRUMMOND THRIFTWAY 335
THRIFTWAY
Maintains Substandard Wages
and Conditions
Do Not Patronize
Support Our Members in Their
Effort to Make a Living Wage
UFCW LOCAL
No 1349
The picketing was at all times purely informational in
purpose and character At no time did it have an organs
zational purpose, and I so find I further find that at all
times the picketers comported themselves in a peaceful
and orderly fashion, were ambulatory, and that at no
time did any of them in any way interfere with vehicular
or pedestrian traffic at or around Respondents premises
or at any point leading thereto or therefrom, including
entrance or access to or egress from Respondents store
or to the Polly Drummond shopping center
On or immediately after commencement of the picket
ing on May 11, 1982, Respondents manager, James
Sarver, who had been transferred by Respondent from
its Wilmington shopping center," emerged from the store
and very harshly" directed the picketers to get away
from the front of the store' and to "move [your] car out
of the parking lot So did Mike Zingo, who told them
to get out None of the picketers responded Approxi
mately 10 minutes later Delaware State Police Sergeant
and Road Supervisor Sacco appeared in answer to Re
spondent's call As of this time , no customers had yet ar
rived After entering and emerging from the store Ser
geant Sacco informed the picketers that the store was
complaining and that if the picketers did not leave they
would be arrested for disorderly conduct criminal tres
pass or loitering 10 he suggested to them that they
proceed to the outside highway access to the shopping
center (Jt Exh 1, see also G C Exh 3A) almost 200
feet distant which they did, and also that they seek legal
advice Thereafter the picketers confined their picketing
to the three highway vehicular entrances/exits (Jt Exhs
1 2 and 3) to the shopping center-at substantial dis
tances from Respondents store-until the picketing was
altogether discontinued about 3 weeks later, shortly after
the filing on May 19, 1982 of the charge here
In the early evening of May 3, 1982 Donald C
McKay Jr a union picketer wearing his informational
placard (Jt Exh 2) at a vehicular highway entrance to
the shopping center (Jt Exh 1), observed Owner Mike
Zingo speak to a uniformed state policeman) i in front of
9 See supra at In 8
10 Sergeant Sacco acknowledged at the trial that he advised the picket
ers that they could [be] removed pursuant to the Delaware Criminal
Code and arrested for disorderly conduct criminal trespass if the
owner so desired or loitering as well as restrained by civil court order
i 1 Respondent Owner Mike Zingo acknowledged at the hearing that
Delaware State troopers in official uniform were in his pay to direct
traffic getting out of the shopping center if there was any problems
[g]etting in and out of the entranceway (it Exh 1) According to
Zingo at the hearing there was nothing visible to indicate these police
men were not on official duty while so in Respondents private employ
Respondents store to do something about McKay The
uniformed policeman immediately approached McKay
and directed him to remove his signs (Jt Exh 2) from
his car parked in a space near where McKay was stand
ing at the vehicular highway entrance (Jt Exh 1) and to
move his car elsewhere in the parking lot McKay coin
plied The policeman further ordered McKay not to
picket at that or any other entrance to the shopping
center, but to confine his picketing to the outside road
grassway (grassy area 58 feet 3 inches wide on it Exh
1) between entrances or, if not, the picketers would find it
unsafe I credit this testimony of McKay, who im
pressed me as a forthright and candid witness, it being
further noted that, without explanation, the policeman in
question was not called to controvert McKay's testimony
in any way I also credit McKay s additional testimony
to the effect that for practical purposes all motorists en
tering the shopping area , past where he had been stand
ing on the edge (R Exh 5), merely drove right in with
out stopping that there was no way to determine who
was destined for any paticular store, that he observed
only perhaps 15-20 percent of these going into Respond
ent s store, and that neither he nor any othe picketer
blocked traffic at any time
3 Leasehold
Testifying as Respondent's witness, Michael Conte,
property manager since 1978 of the Polly Drummond
Shopping Center, swore that tenants there execute a
basic form lease containing no prohibition against picket
ing, that there is no restriction on who may or may not
park in the shopping center nor regarding display of any
sign in or outside of any car so parked, and that there
was no complaint to the shopping center management
nor any discussion with him by Respondent or any other
tenant concerning the picketing He also confirmed that
there is a public bus stop located in the shopping center
There is no evidence of any posted sign or other re
striction regarding who may enter the shopping center
or any store or establishment therein, or who may use its
sidewalks or parking area for any purpose
The basic and supplementary ground leases (R Exh 2)
and sublease (R Exh 1), the latter a 9 year sublease
from April 15, 1982, to December 30 1991, from A&P as
lessor to Respondent as lessee , contain no provision
whatsoever proscribing, or requiring or giving the
power, right, or privilege to the lessee to proscribe in
formational or other picketing or prohibiting or restrict
ing the use of any sidewalk or parking space for or from
any purpose or use Sidewalks and parking areas are ex
plicitly required to be for use in common with other oc
cupants of said [Shopping] Center' (R Exh 2, printed
lease pp 1 and 2), and dominion and control over them
as well as maintenance thereof, is reserved to the lessor
(id at p 2)-not Respondent These provisions are incor
porated into Respondents current sublease (R Exh 1,
p 2, pars 4 and 5A p 3, par C )
4 Parties current positions
Although, as indicated above, the Union ceased its
picketing soon after it filed the charge resulting in issu
336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ance of the complaint by the Board s Regional Director
it continues to maintain that it has that right The Gener
a] Counsel agrees On the other hand, Respondent
Owner Mike Zingo continues to insist that he will again
call the police in the event of resumption of any picket
ing to remove any person picketing anywhere along the
course of the 146 foot sidewalk in front of his store
Zingo acknowledges that at no time has he sought court
or Board intervention by way of injunctive relief or oth
erwise, he has been content to rely on summary police
action He also acknowledges that no other merchant in
the shopping center has complained or even spoken to
him at any time about picketing at any place
B Discussion and Resolution
This case renews the question hoary in court and
Board annals of the right to picket peacefully on proper
ty perceived by the picketee as private and therefore
immune from such nonconsensual use The salient guid
mg principles distilled from an extensive review of to
spectrum of decisional authority dealing with this ques
tion were recently set forth at length in Ameron Automo
tive Centers, 265 NLRB 511 (1982) and need not be reit
erated here so soon afterward The long and short of it is
that as here applicable problems of the nature here pre
sented cannot be simplistically resolved by mechanical
resort to catchwords or phrases such as the supposed ab
solute inviolability of rights of private property -rea
sonable invasion of which since time out of mind has
been sanctioned as subject to supervening constitutional
and statutory provisions as well as to regulatory local
and common law controls and requirements including
conformation of its use to accommodate rights of others,
or to social policy as legislatively declared administered
and judicially interpreted We are currently instructed by
our highest Court that in resolution of such questions
specifically in conflict resolution arising from statutory
rights under the Act-not to speak of constitutional
guarantees such as First Amendment freedom of expres
sion on the one hand and on the other hand, rights of
private property (as to which there is a huge spectrum
of varieties e g the nome and castle with a shopping
center such as here)-a reasoned balancing is necessary
See Hudgens v NLRB 424 U S 507 (1976) in effect re
nouncing the rationale in Food Employees Local 590 v
Logan Valley Plaza 391 U S 308 (1968) and reinstating
that in NLRB v Babcock & Wilcox Co 351 US 105
(1956)
Respondents store is one of about 15 conjoined stores
situated in a close in suburban area with unrestricted
access directly off a heavily trafficked highway and
with unrestricted public parking facilities as well as a
public bus stop in front of the stores shared by all store
keepers and their customers as is a common sidewalk
running in front of all the stores There is neither evi
dence nor contention that any posted or otherwise pub
licly announced restriction or limitation has been placed
on public access to this area its stores its inner vehicular
area or its sidewalks by the owner of the property or re
version or by any of the lessees Respondent nevertheless
contends that it is through summary policy action privi
leged to restrict the peaceful exercise of First Amend
ment and/or statutory rights in this area specifically on
that portion of the shared sidewalk abutting on its store
as well as in the shared parking areas Respondents sub
lease as well as its lessor s underlying lease expressly re
serve control and maintenance of the sidewalk and park
ing areas to the lessor or owner of the reversion Be
cause the sidewalk and parking areas are neither leased
nor controlled by respondent but are on the contrary,
under the applicable leases expressly reserved to the
lessor or owner of the reversion 12 Respondents stand
ing to exercise the absolute dominion it here asserts in
defense of its actions, is questionable Further throwing
into question the allegedly wholly private character of
the location in question as enuring to Respondents own
dominion or control is the fact that there is a public bus
stop in the parking area immediately in front of Re
spondent s store Thus these stores are like urban or sub
urban stores that provide off roadway or off public high
way customer parking in front of (or sometimes behind
or to the side of) the clump of stores To sanction abso
lute or unfettered prohibition of orderly exercise of First
Amendment rights of freedom of communication (or of
statutory rights under the Act) in such a publicly shared
location as Respondent insists it has the unbridled power
to exercise, would appear to constitute a major intrusion
into that important constitutionally (as well as statutori
ly) guaranteed right Respondents assertion of such a
broad private power must therefore be viewed with cir
cumspection in a society dedicated to such freedoms as
ours Beyond that attempt to create an Act free en
clave 13 cordoning off outside union organizers recently
eschewed by even the dissent in Ameron Automotive Cen
ters supra 14 regarding nonemployee union organizational
efforts (unlike the purely informational picketing here)
Respondent seeks to create a thin Maginot Line of its
own making to foreclose constitutionally and statutorily
guaranteed nonunion organizational freedom of commu
nication to the public
Any retail store that as here is architecturally set
back from a roadway peripheral sidewalk (if any) or
building line, whether described as located in or on a
so called mall or shopping center or otherwise
within as well as outside of city limits is similarly on
private property This is not to say, however that the
abutting common sidewalk-particularly where as here
shared by adjoining storekeepers-is not available for
lawful uses and purposes15 by the general public espe
cially where as here again access to the sidewalk (and
shared parking) has in no way been limited by the holder
of the reversion having ownership and control of the
shared sidewalk and other common portions Indeed by
seeking to interdict or limit use of the shared sidewalk
12 Neither Respondents immediate lessor (A&P) nor the basic lessor or
owner of the reversion nor any other storekeeper or user of the shared
sidewalk or parking areas has at any time objected to the picketing here
11 Ameron Automotive Centers supra at 527 fn 50
14 Id at 518
15 Orderly area standards picketing such as here designed for exam
pie to inform the public of the picketed merchant s failure to pay his em
ployees the living wage prevalent in the area has long been recognized
as a constitutionally protected exercise of free communication under the
First Amendment See infra for further discussion of this point
POLLY DRUMMOND THRIFTWAY
an individual lessee storekeeper such as Respondent may
be exercising unwarranted dominion or police power
over property that is not his and thereby interfering with
property rights of or imposing his own ideological pref
erences on other storekeepers as well as the reversioner
Unlike Ameron Automotive Centers supra and numer
ous other cases, the instant case involves area stand
ards informational, and not union organizational picket
ing There is no proof or contention here that the picket
ing in question had an organizational purpose such as to
come within the interdict of the Act, nor has Respondent
at any time so asserted or sought the interposition of the
Board or any court to stop or prevent it As is well
known, unlike organizational picketing which is beamed
at employees to recruit them to affiliate with a union
area standards picketing is purposed to inform the gen
eral public that the picketed merchant is engaged in a
labor policy that will undermine the standard of living
and economic stability of the area Area standards pick
eting is designed to inform the general public that the
picketed merchant s substandard wages and other
labor practices toward its employees will depress not
only the wages of other employees in the area, but also
thereby have an unfavorable impact on the standard of
living of customers (many if not most, of them employ
ees themselves), and even an unfavorable effect on the
competitive position of other merchants thereby eco
nomically disadvantaged because of the lower prices at
which the picketed tradesman is able to vend his product
because of his lower labor costs Thus area standards
picketing may be viewed as imbued with somewhat of a
public interest character, in possible contrast to purely
organizational picketing Indeed true area standards
picketing as here, may be regarded as mere expression
of the First Amendment right of freedom to commune
cate (even though it also inheres statutorily in Section 7
and elsewhere, of the Act 16 much as verbal or visual
communication among prospective customers or other
users of a sidewalk or other open and unrestricted areas
outside a store or stores
Thus, the right to engage in area standards picketing
may be regarded as more free from constraints17 in the
described context than the right to engage in organiza
tional picketing since unlike organizational picketing
which derives solely from or is limited by a statutory
basis (the Act) area standards picketing also derives
from a constitutional basis-namely the First Amend
ment We should therefore be slow except for compel
ling necessity to impose shackles on its peaceful exer
cise 18
18 Cf Hod Carriers Local 41 (Calumet Contractors Assn) 133 NLRB
512 (1961) 8(b)(4)(C) context) and Houston Building & Trades Council
(Claude Everett Construction) 136 NLRB 321 (1962) 8(b)(7)(C) context)
Giant Food Markets 241 NLRB 727 (1979) enf denied on other grounds
633 F 2d 18 (6th Cir 1980)
17 This is not to suggest that area standards picketing is not subject to
the usual constraints of orderliness as properly enforced by local and
other authorities
18 In this connection compare Giant Food Markets 241 NLRB 727-
729 fn 11 (1979) enf denied on other grounds 633 F 2d 18 (6th Cir
1980) with the brief footnote obiter in the nature of a passing query
raised but unexplained in a differing context (preemption) in Sears Roe
buck & Co v Carpenters San Diego County District Council 436 U S 180
337
It flows from what has been said that the alternative
modes of communication inquiry sometimes or usually
required in assesing the propriety of permitting organiza
tional picketing on property clearly private in charac
ter,19 may be far less in the case of area standards pick
eting in view of the immeasurably larger amophous
and practically unidentifiable population involved-i e
customers, business and social invitees, permittees,
tradesmen and visitors generally of a particular store in
a cluster of stores and other establishments in contrast to
the limited and usually readily identifiable or ascertain
able class of employees of a store sought to be organized
Furthermore, members of the public desiring to com
municate such information to each other, whether on
shopping center sidewalks or elsewhere-verbally, or
through button wearing, lettered sweatshirts printed
bandouts or even sandwich signs-are not expected to
go to the considerable trouble and expense, as well as the
impracticality, of restricting expression of their view
point to formal newspaper television, and radio advertis
ing of doubtful efficacy and usually necessarily to be pre
ceded by a further costly preliminary survey to attempt
to arrive at an unscientific estimate of whether the par
ticular advertising medium (much less the advertisement)
will reach an adequate proportion of those assumed
to patronize the store in question Is it constitutional,
proper or fair to single out unions or groups of employ
ees alone as an unequally protected and disfavored class
on whom uniquely to impose such costly and impractica
ble burdens on the constitutional or balanced right
freely to communicate peacefully in public places920
We may start with the proposition that there is no
general right constitutional or otherwise to enter with
out permission, the private property of another for any
purpose including the purpose of exercising any consti
tutional right, including the First Amendment right to
communicate But in the instant case we are confronted
at the threshold with the fact that the area was hardly
private it being publicly trafficked, open, and unre
stricted to all, indeed the power to eject or restrict com
munication in the places here attempted to be exercised
after access was freely gained has at no time been assert
ed by any person owning or entitled to exercise control
over those areas
Moreover, in the instant context what specifically is
the private property that requires or merits overriding
protection 9 Respondent neither owns nor is entitled to
exercise control over the sidewalk or parking areas and
those who do voice no opposition to the picketing It
may more broadly and challengingly be queried whether
an aggregate of storekeepers may gain exemption from
what would otherwise be constitutionally (as well as
statutorily) guaranteed rights of communication of per
sons on the abutting sidewalks and shared parking areas,
at 206 fn 42 (1978) See also in this connection Giant Food Markets v
NLRB 633 F 2d 18 23-24 fn 13 (6th Cir 1980)
18 Cf Ameron Automotive Centers supra at 525-526 fn 36 and cases
cited
20 In Ameron Automotive Centers supra the full Board including the
dissenting Members (id at fn 33) regarded such burdens as impracticable
even in an outside union organizing campaign in a shopping center See
also Giant Food Markets v NLRB 633 F 2d 18 at 24-25 (6th Cir 1980)
338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
through the simple expedient of dubbing themselves a
shopping center -within or outside a city 21 In what
ways does Respondents store differ from one of a simi
lar cluster of stores located within a municipality and ar
chitecturally set back a few feet off the abutting road or
peripheral sidewalk? Could all such architectual contri
vances including access sidewalks used in common by
all stores, gain exemption from communicative freedoms
through the simple expedient of dubbing themselves
shopping centers? Because a storekeepers enclosed
restaurant within a shopping center is regarded as
public and therefore open to freedom of communica
tion by its users-even outside union organizers '22 why
are not its public sidewalks and restricted parking areas
to be similarly regarded? To label the area standards
advocates here as criminal trespassers intruders, or
loiterers, as distinguished from all other members of
the public permitted unrestricted access to and free com
munication with each other on the common sidewalk
and parking area , is to beg the question and enthrone
rubric over logic
Taking the balanced view required under Babcock &
Wilcox, supra it is clear and I find, that there was no
more inconvenience to Respondent, or interference with
its business, by the orderly area standards picketing than
there would be if Respondents store were located on a
city street, indeed perhaps less-i e , minimal Respond
ent is, however-precisely as it would be if its store
were located on a city street-understandably unhappy
over the picketing of its store, regardless of location But
Respondent cannot for that reason privately proscribe
the exercise of a constitutional or competing right cannot
turn on the unhappiness of a person affected by its exer
cise
It is accordingly determined that by its descibed ac
tions under the circumstances found, in ousting and pre
eluding the Charging Party s area standards picketers
from peaceful and orderly use of the common sidewalk
and parking area in front of its retail store in the Polly
Drummond Shopping Center on the occasions described
(and by its insistence on possession of the power and in
tention to repeat and continue such action) Respondent
has (and continues to) violate Section 8(a)(1) of the Act
as alleged in the complaint
CONCLUSIONS OF LAW
1 Jurisdiction is properly asserted in this proceeding
2 Through its actions as set forth and found in section
III supra, Respondent has interfered with restrained,
and coerced employees in the exercise of their rights
under Section 7 of the Act, in violation of Section 8(a)(l)
of the Act and continues to do so
3 The unfair labor practices have affected affect and
unless permanently restrained and enjoined will continue
to affect commerce within the meaning of Section 2(6)
and (7) of the Act 23
REMEDY
Having been found to have violated the Act as de
scribed, Respondent should be required to cease and
desist from those or similar violations, to permit access
by the Union to the described location for peaceful and
orderly area standards informational picketing, and to
post the usual informational Board notice conventionally
required in such cases
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed24
ORDER
The Respondent, Polly Drummond Thriftway Inc,
New Castle County Delaware its officers agents, sue
cessors and assigns shall
1 Cease and desist from
(a) Barring, ousting, or removing, ordering or threat
enmg the removal, or invoking or threatening to invoke
police or other aid or assistance to procure the removal
from any public sidewalk or parking area used by the
public in or in common by lessees or tenants of Polly
Drummond Shopping Center at or near Linden Hill
(New Linden Hill) and Polly Drummond Roads in or
near Newark New Castle County Delaware, of any
person or persons including Local 1349 United Food
and Commercial workers International Union and its
members agents, and representatives peacefully and in
an orderly fashion picketing or otherwise communicat
ing, or attempting to communicate in such areas and lo
cations with other persons and the general public con
cerning the alleged failure of Polly Drummond
Thriftway, Inc to observe or maintain wage levels and
other terms and conditions of employment prevalent in
the area
(b) Demanding that such picketing at such locations
cease or employing or summoning State local or other
police to enforce such demand
(c) In any like or related manner interfering with re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Permit Local 1349 United Food and Commercial
Workers International Union, and its members, agents,
and representatives, peacefully and in an orderly fashion
to picket concerning Respondents alleged failure to ob
serve or maintain prevailing wages or other terms and
conditions of employment or otherwise lawfully to com
municate with other persons and the general public on
the public sidewalks and parking areas used by the public
21 In Ameron Automotive Centers supra all members of the Board (in
eluding Members otherwise dissenting-see slip op at fn 17) regarded as
violative of the Act a shopping center storekeepers proscription of
union organizing by nonemployees of the storekeepers nonrestaurant
employees in the storekeepers restaurant within the shopping center
22 Id at fn 21
23 The parties proposed findings and conclusions are allowed only to
the extent consistent with the findings and conclusions here
24 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 put
poses
POLLY DRUMMOND THRIFTWAY
in or in common by lessees or tenants of the Polly
Drummond Shopping Center, including that portion of
the sidewalk in front of Respondents supermarket store
so long as entrance to or egress therefrom is not blocked
(b) Post at its supermarket store in the aforesaid shop
ping center copies of the attached notice marked Ap
pendix 25 Copies of the notice, on forms provided by
the Regional Director for Region 4, after being signed
by the Respondents authorized representative shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus
tomarily posted Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de
faced or covered by any other material
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
25 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
339
WE WILL NOT bar oust, remove or order or threaten
to bar, oust, or remove or obtain police or other aid to
do so any member agent, or representative of Local
1349 United Food and Commercial workers Internation
al Union or any other person, from any public sidewalk
or parking area, including those in front of our store in
the Polly Drummond Shopping Center, where any such
persons peacefully there picket or otherwise commune
cate lawfully to inform the public concerning our wage
and employment benefit levels and our other labor poli
cies and practices
WE WILL NOT demand that such picketing cease nor
will we employ or summon the police to enforce any
such demand
WE WILL NOT in any like or related manner interfere
with restrain or coerce our employees in the exercise of
rights guaranteed them in Section 7 of the Act
WE WILL recognize the right of members, agents, and
representatives of Local 1349, United Food and Com
mercial Workers International Union, as well as others
to picket peacefully and in an orderly fashion on those
sidewalks, and to lawfully inform the general public
about our wage and employment benefit levels and other
labor policies and practices so long as our store en
trances and exits are not blocked by such picketers
POLLY DRUMMOND THRIFTWAY, INC
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice