Ramey Supermarkets, Don Newton'S Supermarket, Inc

National Labor Relations Board - Board Decisions

Feb 10, 1989

292 N.L.R.B. 967 (N.L.R.B. 1989)

MOUNTAIN COUNTRY FOOD STORE
Mountain Country Food Store , Inc , Roswil, Inc ,
d/b/a Ramey Supermarkets , Don Newton's Su-
permarket , Inc and Teamsters Local Union No
245 affiliated with International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and
Helpers of America , AFL-CIO Cases 17-CA-
10595, 17-CA-10599, and 17-CA-10600
February 10, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN , CRACRAFT, AND
HIGGINS
On November 5, 1982, Administrative Law
Judge Harold A Kennedy issued the attached deci-
sion The Respondents filed exceptions and a sup-
porting 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 brief and has
decided to affirm the judge's rulings, findings, and
conclusions as explained below, and to adopt the
recommended Order as modified
The Union represented approximately 12 em-
ployees of a Coca Cola bottling plant in Aurora,
Missouri, and began an economic strike about Sep-
tember 1, 1981 In support of its strike the Union
picketed the Employer at its plant location, sent
out roving pickets following the Employer's trucks
on their deliveries, and also engaged in consumer
picketing and handbilling at various locations The
complaint alleges that the Respondents, at four dif-
ferent locations, violated Section 8(a)(1) of the Act
by telling individuals engaged in handbillmg that
they could not handbill on the premises and, at two
locations (Lakeview and Respondent Ramey's
Aurora store) by telling handbillers they would be
arrested if they failed to leave the premises
The judge found that Respondent Ramey Super-
markets at three locations in Aurora and Monett,
Missouri, and Respondent Mountain Country Food
Store at its Lakeview, Missouri location violated
the Act as alleged i Applying the balancing test set
forth in NLRB v Babcock & Wilcox Co, 351 U S
105 (1956), the judge found that the Union's right
to handbill near the area where customers entered
and exited the stores outweighed the Respondent's
private property rights, and therefore the hand
billers were not required to move to public proper-
ty as they were asked to do We have decided to
' The judge dismissed allegations regarding the third Respondent Don
Newton s Supermarket As no exceptions were filed to that dismissal
Newton s is not included in our discussion mfrs
967
adopt the judge's conclusions for the reasons set
out below
In Jean Country, 291 NLRB 11 (1988), the Board
recently reexamined and clarified its analytical ap-
proach in access cases The Board noted there that
in all access cases its essential concern will be the
degree of impairment of the Section 7 right if
access should be denied, as it balances against the
degree of impairment of the pnvate property right
if access should be granted The Board emphasized
that consideration of the availability of reasonably
effective alternative means of communication is es-
pecially significant in this balancing process The
Board in Jean Country set forth a number of factors
relevant to assessing the weight of property rights,
Section 7 rights, and alternative means of commu-
nication Noting that there is a certain interdepend-
ence among these factors, the Board stated, "for
example, whether a particular situs is a vast ex-
panse or cramped quarters may be relevant both to
defining the strength of the property right and to
deciding the reasonableness of conducting the Sec-
tion 7 activity on its perimeter as an alternative
means of communication "2 Accordingly, we turn
to consideration of the instant case in light of Jean
Country
The facts are set forth in detail in the judge's de-
cision Briefly, at the time of the events at issue,
the Union was the certified bargaining representa-
tive of production and maintenance employees, in
cluding route salesmen , employed by Coca Cola
Bottling Company of Aurora, Missouri 3 The
Union began an economic strike about September
1, 1981 In support of its strike, the Union picketed
the Coca-Cola plant, had roving pickets follow the
Employer's trucks on deliveries to various retail
outlets, and also utilized consumer pickets and
handbillers to publicize its dispute Only the hand-
billing at certain of the Respondents' locations is at
issue in this proceeding The handbilling was done
by striking employees, as well as others employed
by the Union The individuals engaged in handbill
ing were concededly on sidewalks and parking lots
owned or controlled by the Respondents The
handbills announced that members of the Union
were on strike against their employer "in an at-
tempt to gain a fair and just contract," that the
Union "urgently" requested that the reader "NOT
BUY products distributed by COCA-COLA
BOTTLING COMPANY of Aurora," that the
Union's dispute was only with the Employer, and
2 Jean Country supra
' The Respondents exceptions contend inter aha that this proceeding
should be dismissed as moot because the Union lost a decertification elec
tion at Aurora Coca Cola a month before the hearing in this case We
find no merit in this exception
292 NLRB No 100
968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that the Union was not asking individuals to stop
patronizing the targeted establishment At each lo-
cation, the Respondents told the handbillers they
would have to leave the premises, and at two loca
tions also told them they would be arrested if they
did not do so
Respondent Mountain Country Food Store is sit-
uated in a relatively small shopping center on the
northeast corner of Routes 13 and 76 in Lakeview,
Missouri The site is also occupied by a bank, a res-
taurant, and approximately nine smaller shops The
Respondent is located at the north end of a large
building, with three shops and the bank at the
other end A somewhat smaller building housing
the restaurant and other shops sits to the west of
the long building, separated by a sidewalk Re
spondent Ramey's Aurora store is located on the
south side of College Street, bound by an alley to
the west, and Jefferson Street to the east The Re-
spondent's store occupies approximately half the
frontage, beginning at the alley, with a cleaners
and a variety store between the Respondent's store
and Jefferson Street A parking area between the
stores and the public sidewalk along College Street
is entered from the alley, with a lane down the
middle to the exit on Jefferson Street, and diagonal
parking on either side The two Ramey's stores in
Monett each occupy a separate building with its
own separate parking area The Ramey's Cleveland
Avenue store site in Monett is similar to that of the
Aurora store discussed above, except that it is the
sole occupant The other Ramey's store in Monett
is situated between Main Street to the south and
Broadway on the north Its parking lot has en-
trances and exits to both of those streets, and ex-
tends from the store west to Euclid Street A 3-
foot wide sidewalk separates the store from the
parking lot Another sidewalk extends from the
Broadway driveways south through the parking lot
for most of the length of the store
It is stipulated that the Respondents hold a lease-
hold interest in the stores' premises, sidewalks, and
parking lots involved, including the right to con-
trol the parking lots, except (concerning Lakeview
and Ramey's Aurora store) to the extent that it
might conflict with any of the other businesses'
right to have its customers use the parking lots At
the Ramey's Aurora location, the Respondent
maintains the parking lot also used by the cleaners
and variety store Further, it is undisputed that
each of the Respondents' stores involved here sold
products of Aurora Coca-Cola Bottling, and that
these products composed approximately 2 to 4 per-
cent of each stores' inventory
It is clear, as a threshold matter in the accommo-
dation analysis, that the Respondents' conduct at
each of the four locations was based on a legiti
mate property interest because the Respondents
have leasehold interests in the stores , sidewalks,
and parking lots involved here The two Ramey's
stores in Monett are freestanding facilities with
their own parking lots for the exclusive use of the
stores ' patrons Similarly , at the Ramey's Aurora
store , the Respondent maintains the parking lot and
controls its use, except to the extent that it might
conflict with the right of the other two establish
ments on the site to have their customers use the
lot The situation is the same at Respondent Moun
tarn Country Food Store 's market in Lakeview, al-
though the parking facilities at that small shopping
center are used by the customers of several more
stores, as well as by patrons of a bank and restau-
rant There is no evidence that the Respondents
permitted use of their property by any outside
group , either for charitable or commercial pur-
poses Although there are differences in the rela-
tive strengths of the property interests between the
freestanding stores and the stores that share their
sites with other businesses , we conclude that the
Respondents ' property rights at issue at each of the
locations is a relatively substantial one In this
regard , however , we note that the judge found that
the premises of all four stores , including the adja
cent sidewalks and parking lots, are "essentially
open to the public "
With respect to the Union 's activities , we agree
with the judge that the Union 's handbilling, which
is in support of its primary economic dispute with
the bottling company , is clearly protected by Sec-
tion 7 The type of "struck product" consumer
handbilling engaged in by the Union here was rec-
ognized as being protected activity by the Supreme
Court in its 1964 Tree Fruits decision (NLRB v
Fruit Packers Loca l 760, 377 U S 58) Accordingly,
we find that the right asserted here is a relatively
strong Section 7 right Further , as the judge found,
there is no evidence that the handbillers interfered
significantly with ingress or egress at any of the
four stores , and the number of handbillers at each
store was reasonable The handbilling was peaceful,
no employees or customers were harassed, and de
liveries were not obstructed Thus , the manne in
which the Union engaged in its conduct does not
diminish the strength of the Section 7 right Under
the circumstances , we find that the Union's Section
7 right involved here is certainly worthy of protec-
tion against substantial impairment
Regarding the Union's alternative means of com
municating its message to its intended audience, the
customers of the four stores , we agree with the
judge that the only possible reasonable alternative
means is handbilling on the public property near
MOUNTAIN COUNTRY FOOD STORE
the entrances and exits to the stores' parking lots
The Union was not seeking a boycott of all Coca-
Cola products Rather, its message was directed at
only those bottled by the Aurora, Missouri plant
Because the identity of the bottling company is not
readily identifiable on a store shelf, and the area
served by local newspapers, radio and television
stations included areas served by other Coca-Cola
bottlers with whom the Union had no dispute, the
use of mass media might have enmeshed those neu-
tral bottlers in the Union's boycott Accordingly,
we agree with the judge's finding that a mass
media advertising campaign through the use of
newspaper, radio, and television advertising is not a
feasible alternative to direct contact with the
stores' customers We further find that, in view of
the detailed nature of the Union 's message in which
it sought to persuade potential customers not to
purchase Coca-Cola products bottled by the Em-
ployer, the information could not be fully con-
tained on a picket sign There is persuasive evi-
dence, as found by the judge, that at each of the
four locations, handbilling from public property at
the parking lot entrances was ineffective because
very few automobiles stopped to receive handbills
on entering the lots Thus, there was little opportu-
nity for any communication between the hand-
billers and potential customers of the stores In ad-
dition, the record supports the judge's findings that
handbilling on the public property resulted in traf-
fic congestion and presented safety hazards to both
handbillers and occupants of the automobiles We
conclude that, in the circumstances here, when the
Union's handbilling targets only a particular prod-
uct and does not seek a total cessation of business
with the stores, requiring the handbillers to confine
themselves to the public property on the perimeter
of the premises would unduly diminish the Union's
right to communicate its message
Accommodating the private property and Sec-
tion 7 rights pursuant to our analysis in Jean Coun-
try, we find that the Respondents' property inter-
ests would suffer some impairment by granting
access to the Union Nevertheless, we conclude
that the impairment would not be substantial, in
light of the unobtrusive manner in which the
Union carried out is handbilling and the fact that
the Respondents essentially have opened up their
premises to the public By contrast, in the absence
of reasonable alternative means of communication,
the Union's Section 7 right would be "severely im-
paired-substantially `destroyed' within the mean-
ing of Babcock & Wilcox"4 without entry onto the
4 Jean Country supra
969
Respondents ' property Thus, we find that the Sec-
tion 7 right outweighed the Respondents' right to
restrict access to their private property in this par
ticular context, and that the Union was entitled to
engage in the handbilling that it conducted at the
entrances and exits of the Respondents' stores Ac-
cordingly, we affirm the judge's conclusion that
the Respondents' refusal to permit the Union's
handbillmg at the respective facilities involved vio-
lated Section 8(a)(1) of the Act
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondents, Mountain Country Food Store, Inc,
Lakeview, Missouri, and Roswil, Inc, d/b/a
Ramey Supermarkets, Aurora and Monett, Missou
ri, their officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied
1 Substitute the following for paragraph 1(a)
"(a) Prohibiting representatives of the Union
from distributing handbills as part of protected
concerted activity in informing the public of its dis-
pute with the primary employer, by directing them
to leave the Respondents' premises "
2 Substitute the attached notices for those of the
administrative law judge
APPENDIX A
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
WE WILL NOT prohibit representatives of Team-
sters Local Union No 245 affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL-
CIO from distributing handbills as part of protect
ed concerted activity in informing the public of its
970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dispute with the primary employer, by directing
them to leave our premises
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
MOUNTAIN COUNTRY FOOD STORE,
INC
APPENDIX B
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
WE WILL NOT prohibit representatives of Team
sters Local Union No 245 affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, War
ehousemen and Helpers of America, AFL-CIO
from distributing handbills as part of protected
concerted activity in informing the public of its dis-
pute with the primary employer, by directing them
to leave our premises
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
ROSWIL, INC, D/B/A RAMEY SUPER-
MARKETS
Donald B Zavelo Esq, for the General Counsel
Donald W Jones Esq and Calvin R Halden Esq, of
Springfield, Missouri, for the Respondent Employers
Jim Kabell, Assistant Business Representative, of Spring
field, Missouri, for the Charging Party Union
DECISION
HAROLD A KENNEDY Administrative Law Judge
This case involves the legality of the handbilling of five
Southwest Missouri retail grocery stores by Teamsters
Local Union No 245 affiliated with International Broth
erhood of Teamsters, Chaffeurs, Warehousemen and
Helpers of America, AFL-CIO (the Union), the certified
collective bargaining representative of the production
maintenance employees of Coca Cola Bottling Company
of Aurora, Missouri (Coca Cola) i
The Respondent employers named in the consolidated
complaint, issued by the Regional Director for Region
17 of the National Labor Relations Board on October 15
1981, at the behest of the Charging Party Union, are La
keview Mountain Country Food Store, Inc (Lakeview),
Roswil, Inc, d/b/a Ramey Supermarkets (Ramey), and
Don Newton's Supermarket Inc (Newton's) 2
Each of the three employers is a Missouri corporation,
and each is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act Each
of the Employers admits grossing in excess of $500,000
annually and annually purchasing goods and services
valued in excess of $50,000 directly from sources located
outside the State of Missouri
Three of the stores involved are Ramey outlets One is
located in Aurora, Missouri (Ramey s Aurora store), one
is located at Ninth and Cleveland in Monett, Missouri
(Ramey s Cleveland store), and one is located on Broad
way in Monett, Missouri (Ramey s Broadway store) 3
The Lakeview store is located at Highways 13 and 76 in
Lakeview, Missouri, and Newton s store is located on
Highway 13 in Crane, Missouri
The following persons are, or were at all times rele
vant, admittedly agents and/or supervisors' acting on
behalf of the respective below named Respondents
David Stockton, Mgr -Ramey's Aurora store
David Clark Mgr -Ramey's Monett Cleveland
store
Bill Hilbert, Asst Mgr -Ramey s Monett Broad
way store
Jim Maze (misspelled Mayl' in the complaint),
Owner of Lakeview
Don Newton Owner of Newton 54
' G C Exh 2 shows the Union was certified on April 18 1980 as the
collective bargaining representative of a unit of Aurora Coca Cola Hot
ding Co employees described as follows
All full time and regular part time production and maintenance em
ployees including route salesmen cooler sales and maintenance per
sonnel premix and post mix sales personnel and plant and equipment
maintenance employees employed by the Employer at its facility lo
cated at Aurora Missouri excluding all office clerical employees pro
fessional employees guards and supervisors as defined in the Act
2 All dates refer to 1981 unless otherwise stated The Union filed a
charge in Case 17-CA-10595 on September 14 against Lakeview whose
correct name is Mountain Country Food Store Inc An amended charge
was filed in the same matter againt Lakeview on the same day Also on
September 14 the Union filed charges againt Ramey in Case 17-CA-
10599 and against Newton s in Case 17-CA-10600
The case was heard in Springfield Missouri on June 22 1982 Re
spondents have requested certain corrections in the transcript Such cor
reckons are ordered as no objection to such request has been received
8 There are Ramey stores at other locations but they are not involved
in the proceeding
* Newton testified that following a heart attack in July he sold the
Newton store to a John Brenstetter who now operates a store at the
same location under the name of Nu Way Foods Newton said he and
his wife continue to own the land where the store is located
MOUNTAIN COUNTRY FOOD STORE
According to paragraph 5 of the complaint , the Union
has had an economic labor dispute with Coca Cola since
on or about September 1 Allegedly , according to para
graph 6 , the Union handbilled Respondents ' facilities
with an object of truthfully advising the public , includ
ing consumers , that a product or products produced by
Coca Cola were being distributed by the Respondents at
their respective facilities " on the following dates
Ramey s Aurora store September 1, 4 or 5, and 8
Ramey 's Monett
Cleveland store September 6
Ramey 's Monett
Broadway store September 8
Newton 's store September 7 and 8
Lakeview 's store September 10 and 11
According to paragraphs 7(a) and 8 of the complaint,
Respondents interfered with , restrained , and coerced
"employees" in the exercise of rights guaranteed in Sec
tion 7 contrary to Section 8(a)(1) of the Act by telling
the handbillers that they could not handbill on the prem
ises and by directing them to leave the premises as fol
lows
(i) Ramey 's Aurora store by Manager David Stockton
on or about September 1, 4 or 5, and 8
(ii) Ramey 's Monett Broadway store by Assistant
Manager Bill Hilbert on or about September 8
(iii) Ramey 's Monett Cleveland store by Manager
David Clark on or about September 6
(iv) Newton's store by Owner Don Newton on or
about September 7 and 8
(v) Lakeview store by Owner Jim Maze on or about
September 10 and 11
Paragraphs 7(b) and 8 of the complaint also allege that
two of the Respondents violated Section 8(a)(1) by
threatening handbillers with arrest if they failed to dis
continue the handbilling and leave the premises, as fol
lows
(i) Ramey s Aurora store by Manager David Stockton
on or about September 8
(ii) Lakeview store by Owner Jim Maze on or about
September 10 and 11
During the trial the parties agreed that Respondents
did direct union handbillers to stop handbilling and leave
the premises of the five stores in question on the dates
specified in paragraph 7(a) of the complaint also, that
paragraph 7(b) of the complaint should be amended so as
to allege that officials of the Ramey 's Aurora store and
the Lakeview store , at the times and places alleged told
the handbillers that they would be arrested (rather than
threatened them with arrest ) if they continued handbill
ing on the premises of the two stores and, as so amend
ed, such allegations are to be considered admitted It was
also stipulated that Aurora Coca Cola products were
sold at the five stores in question and that the Union
handbilled (using the language set forth on G C Exh 3
later identified and received) such stores on or about
the dates in 1981 indicated in Paragraph 6 of the coin
plaint, as amended at this hearing "
The record establishes that the Union had an economic
labor dispute with Coca Cola after September 1 and that
Coca Cola products , at all times relevant represented
971
only a small precentage of the total sales of each of the
five stores
The persons who handed out the handbills were ad
mittedly on sidewalks , parking lots , or other property
owned or controlled by one of the Respondents
A summary of the testimony follows
Jim Kabell identified himself as vice president and as
sistant business agent of Teamsters Local 245 He said he
had been employed by the Union for a little over 3
years
Kabell testified that approximately 12 Aurora Coca
Cola employees began an economic strike against that
firm on or about September 1 Said Kabell
We engaged in picketing the facility there at the
plant We also engaged in what I will term roving
pickets that followed the trucks on their deliveries
to various retail outlets around the immediate area
that they served , and also consumer handbilling at
various retail outlets in the area that they served
On cross examination Kabell testified that Coca Cola
Bottling Company of Aurora served a territory he de
scribed as follows
They went west , past Monett a little ways I don t
know but somewhere there s a line splitting Monett
and Pierce City , south as far as Cassville, Eagle
ville, to the southwest Seligman and Exeter, to the
southeast they split somewhere between Silver
Dollar City and Branson I in not sure where the
trade territory split is there On the east , it's split
between Billings and Republic, somewhere in the
vicinity In the north , they split at what is, well,
close to old Highway 66 It goes as far north as
Miller and Haultown [sic ] The Springfield Coca
Cola distributor picks it up in Greenfield So some
where on Highway 39, between Miller and Green
field , they split the territory
Q So how many counties would it cover?
A Parts of Lawrence County, most if not all of
Berrey County [sic], part of Stone County , a corner
of Christian County , I don t know if they ever get
into the edge of Greene County but I don 't believe
they do Probably parts of four counties That s a
guess , but four or five counties
Kabell agreed that newspapers and radio stations
served the territory of the Aurora bottler and that he
made no effort to utilize such media to advertise his
Union 's dispute with such firm He indicated later on re
direct that Coca Cola products-Coca Cola Sprite, and
Mr Pibb or Tab-of different bottlers were undistingui
shable and that radio and newspaper advertising could be
troublesome Said Kabell
We use consumer handbilling at the store so as not
[to] embroil some facility, some company, that we
had no problem with For example , if we had used
the newspapers and the radios , we would have said,
please do not buy coca cola we have a dispute with
Aurora Coca Cola we have to believe that the con
972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
suming public might not have picked up all the
message all the time and they, in turn might have
caused some problems with the Springfield Coca
Cola Plant or the Baldwin or the Lebanon where
these newspapers and radio advertisements would
go out, whom we had no dispute with
And if you advertise a brand name, that s what
people are going to remember And that s why we
restricted it to the trade territory in which this com
pany distributed products 5
Kabell identified a copy of the handbill distributed at the
five stores in question and sketches or maps of the areas
where the five stores were located The handbill (G C
Exh 3), reads as follows
PLEASE DO NOT
BUY COKEI
TEAMSTERS Local Union No 245 urgently re
quests that you DO NOT BUY the following prod
ucts distributed by COCA COLA BOTTLING
COMPANY of Aurora
COCA COLA
SPRITE
MR PIBB-TABB
Members of Teamsters Local No 245 are currently
on strike against Coca Cola Bottling Company of
Aurora in an attempt to gain a fair and just contract
covering their wages and working conditions We
believe that Coca Cola Bottling Company of
Aurora has not bargained in good faith and is being
unfair to its employees PLEASE HELP US IN
OUR STRUGGLE TO WIN DECENT WAGES
AND WORKING CONDITIONS Our dispute is
with COCA COLA BOTTLING COMPANY OF
AURORA and we are not asking you to stop pa
tronizing this establishment
TEAMSTERS Local No 245
Kabell explained that the roving pickets that the Union
used not in issue here, carried a similar message Asked
if the Union could not have simply stated in its signs or
notices, Please Don t Buy Coke, Kabell replied that he
did not think such would be permissible under the law 6
5 Kabell acknowledged on cross-examination that he could have used
newspaper advertisements which just said don t coca cola sprite tab in
stores located in lower Monett Crane but he thought it would cause
problems in areas where the Union had no dispute Said Kabell
I still fell if you re putting out the message do not buy these prod
ucts that people are going to look for brand names first and the to
cation second We would have been doing an injustice to the coca
cola plants like I say in Springfield Lebanon Baldwin West Plains
e Kabell indicated that the Union had done little handbilling or picket
ing after November or December 1981 He said the Union did handbill
Consumers and Walmart Stores in Monett and Aurora in 1982 The
Union had handbilled certain restaurants soda fountains and drug stores
as well as various stores (e g MFA 7 11) in southwest Missouri We
also extended our handbiliing into Northeast Oklahoma that was serv
iced another facility that was related with Aurora Coca Cola he stated
Kabell stated that the handbilling was done by strik
ing employees of Aurora Coca Cola and by others
that the Union employed to distribute the hand
bills " Kabell identified a typed list of Instructions for
Handbilling (G C Exh 4) which he said he supplied to
the Union s handbillers
Kabell testified concerning conversations he had with
persons managing the two Ramey stores in Monett and
the Ramey store in Aurora Kabell never had occasion
to speak with Don Newton Kabell said he had spoken
with Maze over the telephone once or twice but he had
never met with him in person before the hearing
The General Counsel's Exhibit 5 is the sketch that
Kabell drew of the Ramey Aurora store and its immedi
ate area The sketch shows that the store is situated
south of College Street, a two way east west thorough
fare with a parking lot, bounded by sidewalks in be
tween The public may enter and leave the store only
through a double door located in a recessed area or
alcove near the northeast corner of the store Frank s
Cleaners occupies the space immediately east of the
Ramey Aurora store, and a Modern Variety store is si
tutated just east of Frank s On the west side of the store
there is an alley that is used by automobiles entering the
parking lot (The cars exit out of the parking lot to the
east onto Jefferson a north south street) A church is lo
cated west of the alley and Aurora s city hall is directly
opposite the church to the north (making the church di
agonally opposite the Ramey s store to the northwest)
Kabell explained the use of the parking lot as follows
The parking lot is used by the general consuming
public people that buy groceries from Ramey s
people that use the services of Frank s Cleaners,
and also people that are customers of Modern Van
ety
Regarding Ramey s right to use or control use of the
parking lot, it was stipulated
Roswil, Inc, d/b/a Ramey Supermarkets holds a
leasehold interest in the property that is shown as
the Ramey Store depicted in General Counsels Ex
hibit 5 And under that lease it has a right to con
trol the use of the parking lot except to the extent
that it might conflict with any rights of Frank s
Cleaners or Modern Variety who also have a right
to have customers use that parking lot And that
Ramey s does maintain the parking lot
It was agreed among the parties that Frank s Cleaners
and Modern Variety also contribute to the maintenance
of the parking lot
Kabell stated he stationed handbillers at the edge of
the alcove off to the side that's just opposite the door
way He said handbillers were not stationed at the al
leyway entrance to the parking lot (1) because the Union
did not want to involve customers of Frank s Cleaners
and Modern Variety as such businesses did not sell Coca
Cola products, (2) because the Union did not want to
interfere with the traffic flow and (3) because handbill
ing is always more effective when you can meet the gen
MOUNTAIN COUNTRY FOOD STORE 973
eral public face to face than it is when you do it at the
street
Kabell stated that he spoke with Stockton, manager of
the Ramey Aurora store on two occasions on or about
September 1 and again around September 7 Kabell said
he first entered the store around 7 or 7 30 a in around
September 1 to advise the manager as a matter of cour
tesy of what was going on, i e, that the Union was
handbilling, and pickets could be accompanying trucks
delivering Coca Cola products Stockton, whom Kabell
recognized as a person he had previously known said he
would be in contact with the Ramey office in nearby
Springfield Kabell returned later that morning after
learning that two of the union handbillers (Cindy Keltner
and Susie Allen, he thought) had been asked to leave the
store area Kabell met with Stockton in the store office,
and the latter confirmed that the handbillers had been
asked to leave Kabell said he had talked with another
Ramey official, a Mr Taylor, and a store attorney who
had informed him that the handbillers were on private
property and had no right to be there Kabell asserted a
right to advertise the Union s dispute and discourage the
sale of Coca Cola products but ultimately withdrew and
left the store
On Septemebr 7 Kabell was back at the Aurora
Ramey store and observed Stockton approach hand
billers Donna Barnhouse and Pam Hall who were
standing just inside the alcove' Kabell came up to
Stockton and both voiced the positions that each had
previously stated to each other Stockton went back into
the store, and shortly thereafter a police officer arrived
Kabell said that he and Stockton met with the officer
with the result that the handbillers moved Said Kabell
The police officer told me that it was private
property that he was going to have to request us to
leave I told him who I was and what we were
doing there, that we were a labor organization and
we were on strike, and we were only trying to ad
vertise our dispute He replied Well this may be
more of a civil matter than a criminal matter, but if
they want to sign a complaint then if you persist on
staying here I d have to arrest you And then at
that particular time Stockton said that he would
sign a complaint
He got in the car with the policeman They left
the parking lot I went over and got the girls from
the street and we moved to the west edge of the
parking lot moved to the entrance way and I sta
tioned the girls handbilling there
The handbilling that followed, at the entrance of the
parking lot near the alley, was ineffective in Kabell's
view as few cars would stop Later in the afternoon
Kabell found the handbillers sitting in a car and on
making an inquiry of them, was told that they had been
instructed not to handbill in the alley as it was private
property, too After Kabell paid a visit to the police sta
tion in the city hall across the street, the handbilling re
sumed
The General Counsel's Exhibit 6 is Kabell s sketch of
the area where the Ramey Monett Broadway store is lo
cated The store itself is located in a rectangular building
whose north end is separated from Broadway, a very
busy street, ' only by a sidewalk There is no other busi
ness establishment in the immediate area Main Street is
on the south end of the building Euclid Street is on the
west side of the store and a large parking lot A T
shaped sidewalk runs through much of the parking lot
Automobiles may not enter or leave the lot from Euclid
but may do both at two points on the north, Broadway
side, and at three points on the south, Main Street side
The main entrance exit door to the store is on the west
side, and another door is located on the south side near
the southwest corner
It was stipulated that Roswil, Inc, d/b/a Ramey Su
permarkets had a leasehold interest in the store premises
depicted on GCX 6, which includes the building shown
there, and also the sidewalks and parking lot that are
shown in that exhibit, all being covered by this lease
Kabell said he stationed handbillers on the sidewalk at
both doors of the Broadway store He said handbilling
on either Broadway or Main Street would have been
dangerous to the handbillers would have caused traffic
problems and would have been less effective
Kabell said he observed ineffective" handbilling at
the Ramey s Monett Broadway store on or about Satur
day, September 5, and again a couple of days later when
he spoke with the store s assistant manager There were
he said, for handbillers-Charles Jeff, and Kenneth
Gibson and Vaughn Bolling-at the store, and two were
stationed at the south (southwest) side door Quoting
from Kabell s direct testimony
When the handbillers started to handbill, it
wasn t but just a few minutes until a fellow came
out of the store I walked up to where he was at
He was talking to two of the Gibsons Charles and
Jeff It turned out the fellow' s name was Bill Hil
bert, I believe He was the assistant manager there
at that particular Ramey's store He told us that,
`You guys can't stay here I've been instructed to
not allow you here It s private property
I told Mr Hilbert that we were a labor organiza
tion that we were only trying to advertise our dis
pute He said, You can t be here I said It s my
position that I think we re in the right He turned
and went back inside the door
About a half an hour later a county sheriff's car arrived
An officer got out of the vehicle and Kabell engaged
him in coversation
He told me, You guys have got to get out of
here I in going to arrest you " I said I'd like to
talk to you a little bit and explain our position He
said There's not going to be any talking I'm
going to arrest you I again tried to explain our
position and he told me that he had had three or
four calls and that he was going to arrest us if we
didn t get out of there, that he didn t care what our
position was or anything else that we were in
Berrey [sic] County and we did what he said
974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
At that particular time, we stepped out onto the
sidewalk that is adjacent to the Ramey s, on the
north side of the street I tried to explain to him
about what handbilling in the drives would do, the
traffic problem that it would cause with cars stop
ping on Broadway He said, If you cause any traf
fic stop, I'll arrest you for that also
After the officer from the sheriff s office arrived, the
Union's handbillers were stationed for 15 to 25 minutes
at the center sidewalk ( at the end of the T, G C Exh
6) A car stopped for a handbill and it came close to
being a rearend collision ," Kabell said
Kabell later explained on cross examination that on
Saturday, September 5, when he met and talked with the
Broadway Ramey store manager, Leo Wallace, the
Union was allowed to handbill on the sidewalk in the
middle of the parking lot Handbillers were also sta
tioned that day at the top of T at the edge of the side
walk or shoulder next to Broadway According to
Kabell, the store objected to any handbillers being on the
sidewalk that runs between the north wall of the store
and Broadway Said Kabell
They wanted us to stand on the edge of this shoul
der, they didn t want us on the sidewalk, period,
you know On the north or the west of the market,
they wanted us on the shoulder which existed be
tween the sidewalk and Broadway
Ramey s Monett Cleveland store, along with the adja
cent parking lot which lies primarily on the south, is de
picted in the sketch received as General Counsels Ex
hibit 7 The store is located on the north side of the city
at the northeast corner of Cleveland Avenue (an east
west thoroughfare) and Seventh Street north south thor
oughfare) Kabell described the entrances and exits for
the parking lot and the store itself as follows
There are three places that you can enter and
exit this particular Ramey s store at 7th and Cleve
land One that comes off Cleveland Street on the
east side of the parking lot that enters into what be
comes an alley once it gets up to the side of the
store It s an alley and a drive jointly that enters the
store
Two other exits, those being on the west side of
the store, that serve both as entrances and exits that
enter into and exit off of 7th Street The store itself,
the main doors of the store are centered on the
south side of the building There is a door going in
and a door going out I believe its a double door
there
It was stipulated that
Respondent Roswil Inc, d/b/a Ramey s Super
Market [sic] owns at all times referred herein a
leasehold interest to the store shown as the Ramey s
Monett Store on General Counsel [sic] Exhibit 7
And to the sidewalks that are immediately by that
building, and the lease also covers the parking lot
But the lease does not cover the sidewalk that is
shown immediately by Cleveland Avenue up there
which is a public sidewalk, outside of the lease cov
ered by the diagram
Kabell said he stationed handbillers on the sidewalks
just to the sides of the door rather than on Seventh
Street or Cleveland Avenue in the interests of safety,
proper traffic flow and obtaining effective communica
tion with the public
Kabell said he visited Ramey s Monett Cleveland
Street store (G C Exh 7) on a Sunday on or about Sep
tember 6 He had received a telephone call and received
the message that the handbillers had been asked to go
to the street to handbill When he arrived at the store
they were sitting on the trunk of an automobile parked
on Seventh Street waiting with handbills for customers
who might drive into or out of the parking lot Kabell
said he met and discussed the situation with David
Clark, the store manager , as follows
I went in and introduced myself as to who I was
He introduced himself I told him I understood he'd
asked the girls to leave the property, not to handbill
at the door, and he affirmed that was true I then
told him that I felt that we were a labor organiza
tion within our rights of advertising our dispute He
said My orders are that you can t be there This is
private property If you come there, then 111 have
to call the police '
Kabell then told the handbillers to stay at the edge of
the property back with the drive and left He thought
the handbilling was ineffective at the store only one car
stopped for a handbill while he was there he said
On cross examination, Kabell acknowledged that the
Union had a consumer picket" on the sidewalk next to
Cleveland Avenue and the Union was not asked to
remove it
The General Counsels Exhibit 8 is the sketch that
Kabell drew to show how Newton s store is situtated on
the north side of Highway 13 in Crane Missouri Kabell
said the highways has curves on either side of the
store and is very busy He thought the speed limit for
the highway in that area was 45 miles per hour There is
a parking lot in front of the store There is a driveway at
each end of the parking lot and one may use either in
driving onto or leaving the highway A ditch and
grassy right of way separates the driveways and each
driveway is located some distance ( 250 275 feet, possi
bly even 300 ) from the Newton store s entrance
The General Counsel (and the Union) agreed in sub
stance with the following proposed stipulation
[A]t all times material herein up to and prior to
November 1, 1981 Don Newtons Supermarket
Inc the Respondent, was a lessee to the premises
shown on General Counsels Exhibit 8 as the New
ton s Store including the sidewalk and the parking
lot therein shown that Mr Newton and another in
dividual were the fee simple owners of the real
estate and the lessors, and Respondent Don New
ton s Supermarket was the lessee of that store, and
the sidewalk and parking lot shown in that General
MOUNTAIN COUNTRY FOOD STORE
Counsel's Exhibit 8 with the right to control the
use of those premises
Kabell said , handbillers were stationed on the side
walk adjacent to the doors , to the side of the doors in
early September 1981, again pointing out that handbilling
at the door is more effective He asserted that there
was hardly room for handbillers to stand in a driveway
there , that it would have been dangerous for them if
they had and , moreover , would have caused a backup
onto the highway
Kabell identified the General Counsels Exhibit 9 as
the "map I drew of the stopping center at the Junction
of Highway 13 and Highway 76 at Lakeview, part of
which is the Mountain Country Supermarket parking
lot It is to be noted that the shopping center is located
at the northeast corner of the junction of the highways
and that the Mountain Country or Lakeview store is lo
cated in the north part of the rectangular building A
sidewalk runs between that building and a smaller build
ing on the west that houses several shops and a restau
rant The parking area is large and surrounds the two
buildings Kabell desnbed the businesses and physical
features of the shopping center as follows
The parking lot is used by the general public, the
consuming public, by customers of Mountain Coun
try Supermarket There is a bank there There's a
beauty shop , a jewelry store , a restaurant , several
other businesses there It s just the general consum
ing public There s also a gas station on the corner
of the lot There s a Chevrolet dealership adjacent
to the lot
There are three drives that serve both as en
trances and exits that come off of both Highway 13
and also 76, to drives coming off 13, one coming off
76 The drives , again, you enter going downhill into
the parking lot The Mountain Country Supermar
ket itself is on the northeast section of the shopping
center It has the main doors in the approximate
center of its building , facing west , a door going in
another door coming out
The parties stipulated that-
Respondent Mountain Country Food Store Inc
holds a leasehold interest to the Mountain Country
Market shown on Exhibit 9 which includes a right
to use the parking lot and to control the use of the
parking lot, except to the extent that any conflicting
interests of the other shops or store owners located
therein, which also has the right to use that parking
lot
Kabell said in early September 1981 he stationed hand
billers on the sidewalk just to the side of the doors
going into Mountain Country Supermarket ' He thought
there were 15 different busineses located in the area and
that the Union didn t want to bother the public that
was not going to the Mountain Country Supermarket
where the Coca Cola product was sold ' Again, he
wanted public face to face handbilling directly in
front of the store" and, he said , he wanted to avoid en
975
dangenng people and the possibility of traffic backups
and traffic accidents on Highway 13 and Highway 76
On cross examination Kabell said he assumed that the
restaurant in the shopping center sold Coca Cola He
was unaware of whether the gas station or the bank had
coke machines He stated that the Union had picketed on
the highway a few times near the Lakeview Shopping
Center
Lindy Lee Mitchell testified that she was paid at the
hourly rate of $4 by the Union to handbill the Ramey s
Broadway store , the Newman store , and certain other
stores in southwest Missouri Specifically , she said she
stood at the position marked A in green on the Gener
al Counsels Exhibit 6 on a very hot day in September
and undertook to handbill as persons drove automobiles
into the Broadway store by making a left turn off of
Broadway She said most of the traffic into the parking
lot came in that way and she had a hard time getting
any cars to stop to take the handbills She said the
stores did not interfere with her handbilling at the posi
tion indicated but that she had been asked to move off of
the sidewalk
Donna Barnhouse said she handbilled for the Union be
tween September 1 and November 1 She told of hand
billing one day in September with another handbiller at
the front door of the Aurora Ramey store-indicated as
point A ' on the General Counsels Exhibit 5-and later
at point B where automobiles entered the parking lot
off of College Street , utilizing the end of an alley She
said about 95 percent of the customers entering the store
at point A accepted the handbills but she thought 60
percent of the cars entering the parking lot had refused
to stop and take a handbill She stated that the cars
drove into the lot at a fast rate and she had to jump out
of the way five or six times Barnhouse said she was told
to move from the front door of the store to the entrance
of the parking lot after the manager of the store came
out of the store and talked to Union Official Jim Kabell
Bamhouse said she was at point A for about 20 min
utes the first day but handbilled at point B ' that day for
about 3 hours and on 15 or more other days
Deborah Francisco said she was paid to handbill for the
Union at Ramey s Cleveland store on or about Septem
ber 5 or 6 and at the Lakeview Mountain Country Food
Store on or about September 10 and 11
Francisco said she handbilled briefly at the front door
of the Cleveland store (marked A ' on G C Exh 7)
until the store manager told her to move at which time
she moved to B where cars enter the parking lot from
Seventh Street Handbilling was much easier' at A,'
she said , because at the B position most cars would
not stop
Francisco said she handbilled at the door of the Lake
view store (marked A on G C Exh 9) as customers
entered and left She said she was accompanied by two
other handbillers on the first day and by one other on
the second day Francisco said she was asked to leave
the Lakeview store but did not do so immediately' be
cause she thought the area was "public and that she had
been cleared by Union Official Kabell to be there She
said she eventually left because Maze , the manger of the
976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Lakeview store, told her she would be arrested if she re
mained 7
Patricia Nehl said she was paid by the Union to hand
bill customers entering and leaving the Newton s store
on September 7 She said she and two other handbillers
stood on the sidewalk near the door (marked A on
G C Exh 8) for about 3 hours
Jeffery Gibson a 19 year old former employee of Coca
Cola of Aurora and member of the Union testified that
he handbilled with his older brother at the Ramey s
Broadway store in Monett on or about September 7 He
said he first stood on the sidewalk at the side' of the
main front door (marked C' on G C Exh 6) and hand
billed Ramey customers until the assistant manager of the
store prevailed on Kabell to have the handbilling
stopped at that position Gibson said he told customers
entering the store that he was a Coca Cola employee and
that he wanted to give them information about the strike
against the bottling firm Gibson denied on cross exami
nation that it was difficult for customers to walk by him
a six footer (approximately), or his taller brother Gibson
said he later took up a position at an entrance to the
parking lot on the Broadway side (marked D" on G C
Exh 6) where less people took the handbills from us
Richard Taylor executive vice president of Roswil,
Inc, testified that his company operates 22 Ramey stores
and that it is the firm s policy not to allow handbilling at
any of them He stated that there could be an inventory
in a given store ranging all the way from $1,000 up to
$3,000 in Coca Cola products He thought the sale of
such products would represent approximately 3 or 4 per
cent of the total income of a store
Taylor said the three Ramey stores involved in the
proceeding objected to the handbilling because it inter
fered with customers (including the traffic flow ), clut
tered the stores and presented an insurance hazard Cus
tomers could complain about being harassed or asked to
read something that they re not interest in he said
Some Ramey store leases specifically forbid solicitations
on the parking lot according to Taylor Taylor stated
that the company almost lost a lease for a Springfield
store because there was some handbills and stuff going
on in the parking lot The company spent $18 000 in de
fending its position in court in an action brought by the
landlord Taylor asserted Finally Taylor took exception
to a union being allowed to come on a company s pn
vate property, for which it has invested money and on
which it has paid taxes, to tell customers that they
should not buy a product that the company is selling
Don Newton testified that he operated the Newton
store in Crane prior to suffering a heart attack and his
retirement in late 1981 He said the store now has a new
7 Francisco explained on cross-examination that there were coke ma
chores (indicated on G C Exh 9 by X s ) and other vending machines
on the sidewalks of the Lakeview Shopping Center which she said led
her to believe the area was a public walk She stated that Maze asked
her on September 10 to speak with the local prosecuting attorney whom
Maze apparently telephoned She said she did so and was told that hand
billing could continue at the shopping center if done from 8 feet or more
from the door It was evident that Maze who put up a notice advertising
coke at a reduced puce interpreted the prosecutors advice differently
The next day September 11 Francisco said she handbilled only 10 or 15
minutes and left
owner and that he only has an interest in the land on
which the store is situated Newton stated that it had
been his policy to let nobody post anything in my win
dows and my store or to solicit anything He recalled
that he had lost business at one time as a result of the
fact that, without his knowledge, somebody stuck up a
sign in my front window one time campaigning for
a certain [school] board member which happened to be
against a customer of mine Newton described the
Union s handbilling of his store in 1981 as follows
The handbillers pulled up right in front of my store
and parked at the prime location, right at the front
door parked their car there and was obstructing,
stopping my customers from coming in and out of
the store passing out these handbills
And at first I didn t realize what was going on And
I finally went outside and asked them what they
were doing And they told me what they was doing
there And I said Well, it s funny to me that you
didn t come in and ask my permission I do own
this place of business, I own this property I be
lieve it s mine
And so I 11 appreciate it if you would leave And
they said they didn t want any trouble so they left
And another reason is that the handbills was scat
tered all over the store and the shopping carts you
had to go around and police the area And that s
how I discovered they were outside I seen this lit
erature laying around
Newton estimated that an inventory of all products a
the store would have run between $4 000 and $5,000
but he could not estimate what percentage of that
amount would have been in Coca Cola products He
thought Coca Cola products might have been two to
three percent of the total inventory
James R Maze identified himself as manager and part
owner of the Lakeview Mountain Country Food Store
He recalled that the Union did handbill his store on Sep
tember 10 and 11 He maintained that 3 girls were
there on September 11 as well as on the day before
Maze stated that the handbillers interfered with his cus
tourers He said that the handbillers stood within 3 feet
of the door and harassed customers with a hardshell ap
proach' by placing unwanted handbills in their faces
Said Maze
[I]t makes them unhappy and they don t want to
come back and pretty soon I in not going to be able
to pay the bills And I have nothing to do with
Aurora Coca Cola other than selling their products
And I don t see why in the world I should be in
volved in it If I owned stock in the company or
owned the company I could see it But you re sit
ting here an innocent bystander and all of a sudden
here comes somebody along that is going to inter
fere with your livelihood
MOUNTAIN COUNTRY FOOD STORE 977
Maze thought Coca Cola products constituted approxi
mately 2 to 3 percent of his total inventory of merchan
dise
Maze testified that after placing an ad in a local news
paper he was visited by two persons whom he under
stood to be union members He said he was told he
would be picketed if he did not pull the portion of the
ad that referred to the sale of Coca Cola products Maze
said he was also asked to refuse delivery of 200 cases of
coke that he had ordered
Maze expressed the view that Coca Cola employees
could have effectively advertised their position over a
Springfield radio station as another union had in seeking
to organize employees of a hospital in a nearby commu
nity
Did the Respondents, operators of the five southwest
Missouri retail grocery stores, violate Section 8(a)(1) of
the Act by telling union handbillers, who were pose
tioned on Respondents premises outside of the stores on
parking lots and near the entrance exit passageways, that
they would not be allowed to remain to distribute hand
bills carrying a message designed to discourage the pur
chase of products of one of Respondents suppliers? Re
garding the Newton store, the answer to the question
posed is unquestionably in the negative as Don Newton,
the owner operator of the store, sold the store in 1981
The evidence further indicates that Newton s physical
condition makes it unlikely that he will operate a buss
ness in the future so entry of a case and desist order
against Newton would accomplish nothing whatever the
respective rights of Newton and the Union were See
Northern Indiana Tool, 233 NLRB 917 (1977) also
NLRB v Armitage Sand & Gravel, 495 F 2d 759 (6th Cir
1974) The answer regarding the other two Respondents,
involving operation of the three Ramey stores and the
Lakeview Mountain Country Food Store is not so easily
determined After careful examination of the record and
applicable authorities I am constrained to hold that the
union handbillers had a right to handbill on the premises
of the four stores in question The discussion that follows
applies only to Respondents Ramey and Lakeview
At the outset, I am satisfied that the Union s handbill
ing which was unquestionably peaceful 8 and designed
to discourage the purchase of Coca Cola products in
order to support the strike against the Aurora bottler
was protected concerted activity under Section 7 of the
Act 9 A union acting on behalf of employees undoubte
ly has a right to advance and preserve employment
standards by engaging in such activity The Board has
long held that members of the working class generally
and not employees of a particular employer are entitled
to the Acts protection Briggs Mfg Co, 75 NLRB 569
(1947), citing (at fn 3) Phelps Dodge Corp v NLRB, 313
U S 177 (1941) See also Eastex Inc v NLRB, 437 U S
556 (1978), and Seattle First National Bank v NLRB 651
F 2d 1272 (9th Cir 1980) remanding 243 NLRB 898
(1979)
Resolution of the principal issue, framed above, obvi
ously calls for a balancing of the conflicting property
and Federal statutory rights There are a number of Su
preme Court and other decisions that afford guidance in
determining how the competing interests in the case at
bar should be accommodated Some of the case involve
union picketing and some involve union activity for a
different purpose (e g , area standards picketing, organ[
zational activity) than undertaking to establish a con
sumer product boycott The authorities are, nevertheless
instructive in deciding the instant matter 10 A union may
surely convey a message through the use of handbills if
it may lawfully do so by means of picketing Cf Scott
Hudgens 230 NLRB 414 (1977), NLRB v International
Rice Milling Co, 341 U S 665 (1951)
In Tree Fruits (NLRB v Fruit Packers Local 760),
377 U S 58, 71-73 (1964), the Supreme Court reversed
the Board decision in a proceeding against a union which
had picketed and handbilled at the entrances of 46 Seat
tle Safeway stores in an effort to discourage the purchase
of Washington State apples which were only one of
numerous food products sold in the stores' The Court
specifically rejected the Board s view that the pubicity
other than picketing proviso in Section 8(b)(4)(ii)(B)
necessarily outlawed any picketing of a secondary em
ployer t t
Said the Court
We come then to the question whether the picket
ing in this case, confined as it was to persuading
customers to cease buying the product of the pri
10 At the hearing the General Counsel cited Administrative Law Judge
Clifford H Anderson s decision in Case 16-CA-8581 involving very
similar facts i e peaceful trespassory consumer product boycott hand
billing on premises of a secondary employer On October 8 1982 the
Board upheld Judge Anderson s holding that Montgomery Ward & Co
violated Sec 8(a)(1) by demanding that a union stop handbilling public
entrances to one of its stores located in a Tyler Texas shopping center
but without finding it necessary to approve the Administrative Law
Judge s extensive analysis or all of his findings and conclusions (265
NLRB 60)
My decision in the instant matter was essentially in final form when I
received a copy of the Board s Montgomery Ward decision My review of
the Board s decision in such case does not suggest that my decision
which holds that the Union had no effective alternative means of advis
ing the consuming public of its dispute with Coca Cola and takes into ac
count that the restrictions which Ramey and Lakeview placed on the
Union s handbilling diluted its effectiveness is in error in any way
11 Sec 8(b)(4) in relevant part makes it unlawful for a union-
(4)(i) to induce or encourage any individual employed by any
person to engage in a refusal in the course of his employ
ment to handle commodities or to perform any services or
(u) to threaten coerce or restrain any person where in either
case an object thereof is-
(B) forcing or requiring any person to cease dealing in the
products of any other producer processor or manufacturer or to
cease doing business with any other person
8 Lakeview Manager Maze testified that he was asked to refuse to take
delivery of a load of Coca Cola products at the Lakeview store It is ap
parent that he did not accede to the request and there is no evidence that
any deliveries were obstructed
9 This issue must be addressed first and determined as a threshold ques
tion See Giant Food Markets v NLRB 633 F 2d 18 (6th Cir 1980) re
manding 241 NLRB 727 (1979)
Provided further That for the purposes of this paragraph (4) only
nothing contained in such paragraph shall be construed to prohibit
publicity other than picketing for the purpose of truthfully advising
the public that a product or products are produced by an em
ployer with whom the labor organization has a primary dispute and
are distributed by another employee
978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mary employer, falls within the area of secondary
consumer picketing which Congress did clearly in
dicate its intention to prohibit under § 8(b)(4)(ii)
We hold that it did not fall within that area, and
therefore did not threaten, coerce, or restrain
Safeway While any diminution in Safeyway's pur
chase of apples due to a drop in consumer demand
might be said to be a result which caused respond
ents' picketing to fall literally within the statutory
prohibition, "it is a familiar rule, that a thing may
be within the letter of the statute and yet not within
the statute, because not within its spirit, nor within
the intention of its makers ' Holy Trinity Church v
United States, 143 U S 457, 459 See United States v
American Trucking Assns, 310 U S 534, 543-544
When consumer picketing is employed only to per
suade customers not to buy the struck product, the
union s appeal is closely confined to the primary
dispute The site of the appeal is expanded to in
clude the premises of the secondary employer, but
if the appeal succeeds, the secondary employer s
purchases from the struck firms are decreased only
because the public has diminished its purchases of
the struck product On the other hand, when con
sumer picketing is employed to persuade customers
not to trade at all with the secondary employer, the
latter stops buying the struck product, not because
of a falling demand, but in response to pressure de
signed to inflict injury on his business generally In
such case, the union does more than merely follow
the struck product, it creates a separate dispute with
the secondary employer
We disagiee therefore with the Court of Appeals
that the test of to threaten, coerce, or restrain" for
the purposes of this case is whether Safeway suf
fered or was likely to suffer economic loss A viola
tion of Sec 8(b)(4)(ii)(B) would not be established,
merely because respondent's picketing was effective
to reduce Safeway's sales of Washington State
apples, even if this led or might lead Safeway to
drop the item as a poor seller 12
In its 1979 decision in Giant Food Markets (enforce
ment denied supra) involving area standards picketing
on property owned or controlled by Giant Food and K
Mart, the Board analyzed a number of Supreme Court
decisions handed down subsequent to Tree Fruits, includ
ing NLRB v Babcock & Wilcox Co, 351 U S 105 (1965)
Central Hardware C o v NLRB, 407 U S 539 (1972)
Hudgens v NLRB, 424 U S 507 (1976) and Sears Roe
buck & Co v San Diego County District Council of Car
penters, 436 U S 180 (1978)
Quoting from the Board s decision
12 On the same day that it decided Tree Fruits the Supreme Court
handed down NLRB Y Servette Inc 377 U S 46 (1964) holding the pub
licity proviso in Sec 8(b)(4)(u)(B) also protected a union s handbilling of
a secondary employer-contrary to the holding of the court of appeals
which had regarded the primary employer Servette as only a distributor
and outside of the protection of proviso because it had not produced a
product or porducts
[T]he protected nature of a general form of picket
ing does not necessarily clothe the pickets with a
right to infringe upon the private property rights of
others In Hudgens v NLRB, the Supreme Court
held that any rights which pickets might be afford
ed to engage in such activity on private property do
not emanate from the first amendment of the Con
stitution, but rather have as their source the Nation
al Labor Relations Act It further counseled that
the Board, in determining the extent of such rights,
should accommodate the Section 7 rights and pn
vate property rights with as little destruction of
one as is consistent with the maintenance of the
other " [Citing Babcock & Wilcox ] This approach
was prescribed by the Court in Babcock & Wilcox,
supra, and Central Hardware Company v NLRB,
both dealing with union organizing by nonem
ployees on private property, and was also applied to
the primary picketing in support of an economic
strike involved in Hudgens Although the picketing
here is dissimilar in purpose to either the organiza
tional activity involved in Babcock, or the primary
economic picketing by the employers employees in
Hudgens the Board s role is the same-to accom
modate the Section 7 rights of the pickets with the
private property rights of the Employer [Citing
Sears, supra ] However, as the Court pointed out in
Hudgens, the locus" of the accommodation of
these rights `may fall at differing points along the
spectrum depending on the nature and strength of
the respective Section 7 rights and private property
rights asserted in any given context '
The United States Court of Appeals for the Sixth Cir
cuit on October 23, 1980, cited supra declined to enforce
the Board's Order in Giant Food and remanded for
taking of additional evidence as it found that the Board
had determined that the union s area standards picketing
was protected on the basis that picketing at the parking
lot entrance would have been ineffective-as the union s
message would have been diluted' and the picketing
would have enmeshed a neutral employer- without
case authority and, perhaps more importantly, without
reference to supporting facts in the record The Court s
opinion, which also contained analyses of the cited Su
preme Court cases, does not, as I read it disagree with
anything the Board said in the portion of the opinion
quoted above The Court also cited the Supreme Court s
1968 in Amalgamated Food Employees Union v Logan
Valley Plaza 391 US 308 (1968) holding that area
standards picketing at a privately owned shopping center
was protected on a constitutional basis The Court noted
that the Supreme Court thereafter distinguished Logan
Valley but ultimately overruled such holding in Hudgens
The Court in Giant Food indicated that Babcock &
Wilcox teaches that the accommodation principle is to be
applied whenever there is a conflict between property
rights and protected activity But the Court pointed out
that a union s organizational activity which has an
object of communicating with employees, is different
from area standards picketing where the intended audi
ence includes consumers and potential patrons of a sec
MOUNTAIN COUNTRY FOOD STORE 979
ondary employer The present case, although involving
different issues than area standards picketing, obviously
involves a situation more akin to the latter than the
former Cf Seattle First National Bank v NLRB, supra
It is apparent that the Union involved here, as in Giant
Food, must be allowed a reasonable means of commune
cation with the consumers' The Union here could have
utilized radio or other media in advertising its dispute
with Coca Cola but clearly, on this record, the former
could not have been limited to such a means of commu
nication As the court stated in Giant Food (633 F 2d at
24-25)
A mass media campaign would also diffuse the of
fectiveness of the communication by being physical
ly removed from the actual location of the store
whose policies are at issue and would prevent any
personal contact between the union and the intend
ed audience In this case, the choice is not between
disseminating information through the media away
from the store itself and on site picketing Instead
the choice is between locating the pickets on the
private property near the entrance of the store and
locating them across the parking lot on public prop
erty adjoining the thoroughfare and near the en
trance and exit to the parking lot
See also Scott Hudgens, supra, and Seattle First National
Bank, supra 13 I believe the choice to be made here re
garding handbilling of the Respondent grocery stores is
essentially the same, e e , either on the private property
near the entrances to the stores or off of such premises
on public property near the entrances and exits to the
parking lots
There is persuasive evidence here, from the handbillers
themselves, that handbilling from public property was in
effective Such handbilling also resulted in congestion
and some risk to the handbillers and even to automobile
drivers and passengers Further handbelleng at such pose
tions provided little opportunity for any communication
between the handbillers and members of the public who
are potential customers of the Respondent stores
There is no persuasive evidence that the handbillers
interfered significantly with ingress or egress at the La
keview or any of the three Ramey stores in question
The number of handbillers at each store was reasona
ble 14 Employees were not harassed and deliveries were
not obstructed The store officials were obviously an
noyed that the handbillers might adversely affect sales,
but such fact did not operate to cut off the Union s right
to be on the shopping center' s premises See Tree Fruits,
supra , also Scott Hudgens, supra The premises of all four
stores, including the adjacent sidewalks and parking lots,
here were, as in Scott Hudgens, supra, essentially open
to the public 15
Lakeview Manager Maze indicated in his testimony
that he felt his store was being unnecessarily drawn into
a labor dispute that should involve only Coca Cola, the
primary employer, but his store, as well as Ramey, was
not simply an "innocent bystander' as it was financially
interested in the sale of Coca Cola products See Tree
Fruits, supra, Scott Hudgens, supra , also Lloyd Corp v
Tanner, supra , holding handbilling unrelated to the
shopping center s operations (regarding resistance to the
draft and Vietnam War) to be not constitutionally pro
tected
I am persuaded that application of the Babcock &
Wilcox criteria to the facts of this record requires me to
hold that the Union's right to handbill at the Lakeview
and three Ramey stores, near the areas where customers
enter and exit , outweigh the stores' property rights
Thus, I find that the union handbillers were not required
to move to the street or public sidewalk to perform the
handbilling activity as they were asked to do
While the Union s handbilling on the stores' premises
was protected activity, it does not necessarily follow that
any request made to the handbillers to cease such active
ty would have resulted in violation of Section 8(a)(1)
Presumably a person may be willing voluntarily to
change his or her physical position on any given prem
ises at the peaceful, nonthreatening request of another
without a violation of law occurring The argument for
such a proposition would be more persuasive, no doubt,
where the respective rights of the parties with respect to
the use and control of the premises is unclear Cf Giant
Food supra (633 F 2d at 25-26), Sears, supra (436 U S at
207-208) The record here, however establishes to my
satisfaction that Respondents' requests that the union
handbillers move away from the doors of the stores and
off of their premises (which terms includes shopping
center property) were of a nature that reasonably caused
the handbillers to move or be moved, involuntarily
Such requests constituted demands and were coercive in
violation of Section 8(a)(1) of the Act The requests that
were made of the handbellers at the Ramey Aurora store
on or about September 7, the Ramey Cleveland store on
or about September 6 and the Lakeview store on or
about September 10 and 11 were particularly coercive as
13 In seeking access to an employers private property for organization
al purposes a union unquestionably has the burden of showing there is no
other reasonable means of communicating with the employers employ
ees See Hutzler Bros Co v NLRB 630 F 2d 1012 (4th Cir 1980) revers
ing 241 NLRB 714 (1979) Quoting from the courts s opinion in Seattle
First National Bank (651 F 2d at 1276)
[T]he Supreme Court has held that in organizational picketing cases
the union has the burden of showing that no other reasonable means
of communicating its message to the employees exist NLRB v Bab
cock & Wilcox Co
14 There was (unrebutted) testimony by the Newton s store owner-op
erator that the Union s handbilling of his store was of an obstructing
kind but the case regarding this Respondent is being dismissed on a pro
cedural basis and not on the merits
15 Fn 24 in the Boards decision in Scott Hudgens reads The invita
tion is to the public in the sense that all members of the public are con
sidered potential customers Quoting further from such decision (230
NLRB at 417)
Specific intent to buy is not a prerequisite to invitee status the fact
that many people buy on impulse is explicitly recognized in the
design and layout of the Center s commercial environment As mem
bers of the public the men who carried the signs were apparently
within the scope of the invitation and welcomed as long as they did
not picket Cf Lloyd Corp v Tanner 407 U S 551 (1972) (The es
sentially private character of a store and its privately owned abutting
property does not change by virtue of being large or clustered with
other stores in a modern shopping center )
980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
they were coupled with a threat of arrest Subparagraphs
(a)(i), (a)(u), and (a)(v) of paragraph 7 were sustained 16
Certain of Respondents arguments and authorities
relied on in their comprehensive brief require comment
Respondents indicate that Board precedent should be dis
regarded here in favor of higher binding authority of
decisions by the United States Supreme Court and provi
sions of the United States Constitution Respondent urges
that the Board return to those sound values [established
in earlier Supreme Court decisions] and to discontinue
seeking to assist labor organizations to confiscate proper
ty from employees such as these Respondents I am, of
course, required to follow Board precedent See Ford
Motor Co, 230 NLRB 716 (1977), enfd 571 F 2d 993
(7th Cir 1978), affd 441 U S 488 (1979), but I do not
consider my ruling here, granting the Union access to
Respondents' premises so that it may peacefully inform
potential customers that it opposses Respondents sale of
a product, or a limited line of product, produced by an
employer with which it has a labor dispute as contrary
to the Constitution or any Supreme Court decision
In Hudgens v NLRB, supra, the Supreme Court stated
that Babcock & Wilcox established that the primary re
sponsibility" for accommodating Section 7 rights and pn
vate property rights `must rest with the Board in the
first instance ' The Court did hold in its later Sears,
supra, decision that a state trespass action could be
sought by the department store against a union s picket
ing where the picketing was arguably protected by Sec
tion 7 of the Act, arguably in violation of Section 8 of
the Act, and the store was unaole to obtain a direct
ruling from the Board But the Supreme Court s general
guidelines on Federal preemption in labor management
relations, set forth in San Diego Building Trades Council
v Garmon, 359 U S 236 (1959), remains undisturbed
Quoting from the Court s opinion in Garmon at 236
When an activity is arguably subject to § 7 or § 8
of the Act, the States as well as the federal courts
must defer to the exclusive competence of the Na
tional Labor Relations Board if the danger of state
interference with national policy is to be averted
If the Board decides subject to appropriate federal
judicial review that the conduct is protected by
§ 7 or prohibited by § 8 then the matter is at an
end and the States are ousted of all jurisdiction
US v Causby, 328 U S 256 (1946), involving the
question of whether frequent low level flying military
aircraft over property of a private homeowner constitut
ed an unlawful taking of property by the Government is
not a precedent to be used in balancing Section 7 rights
and property rights of a secondary employer grocery
store under Babcock & Wilcox This is also true with re
spect to the Supreme Court's very narrow holding in
Loretto v Teleprompter Manhattan CA TV Corp 102 S Ct
3164 (1982), involving permanent physical occupation
18 I read the word tell as used in par 7 to include a demand or any
threatening or coercive request Par 7(b) is somewhat duplicative of par
7(a)(i) and par 7(a)(v) and in any event on this record is cumulative
Therefore par 7(b) as well as par 7(a)(ii) is being dismissed
of part of an apartment building (in the form of a cable
installation by dropping a line to the first floor down
the front of an apartment building) which had been
sanctioned by a state commission acting under a New
York State statute I do not read Prune Yard Shopping
Center v Robins, 447 U S 74 (1980), as holding, as Re
spondents apparently do, that the Board is without au
thonty to allow Charging Party Union to peacefully
handbill on Respondents premises In Prune Yard the
Court affirmed the California Supreme Court's holding
that high school students could, pursuant to a California
Constitutional provision, enter on the premises of a shop
ping center and peacefully hand out literature and solicit
support for a petition in opposition to a United Nations
resolution against Zionism without unconstitutionally
(i e, contrary to the fifth amendment) taking property
from the shopping center owners The Court pointed out
that the shopping center owners had not demonstrated
that the right to exclude others ' was so essential that
the state authorized limitation of it amounted to a
taking Significally, the Court explained later in Loretto,
in discussing Prune Yard, that labor cases requiring com
panes to permit access to the organizers" are not appli
cable in a case like Loretto
I reject Respondent's contention that the `mere pend
ency of" this proceeding violates the fifth and tenth
amendments so as to warrant my dismissal of the instant
matter None of Respondents authorities compel such
result in view
The handbilling involved here, to be sure was by non
employees of Respondents but rights of employees (i e
Coca Cola employees) are involved Protected activity in
support of an economic strike are unquestionably entitled
to considerable weight in applying the Babcock & Wilcox
criteria Quoting from the Court's decision in Seattle First
National Bank, supra
The right to picket in support of an economic strike
is at the core of section 7 See United Steelworkers v
NLRB 376 US 492 499, 84 S ct 899 904, 11
L Ed 2d 863 (1961) Teamsters Local 807, 87
N L R B 502 504-505 (1949) Accordingly unions
should be allowed to picket in support of a strike in
an effective manner whenever possible A different
accommodation might be appropriate if some activi
ty not at the core of section 7 such as area stand
ards picketing were at issue See Sears Roebuck &
Co v Carpenters 436 U S 180, 214, 98 S Ct 1745
1766, 56 L Ed 2d 209 (1978) (Powell J , concur
ring), but cf Giant Foods Markets Inc 241
N L R B No 156 6 (June 10 1977) (area standards
picketing permitted on private property)
Further cases like Farah Mfg v NLRB, 450 F 2d 942
(5th Cir 1971) cited at 19 of Respondent s brief, holding
that an employer may properly exclude nonemployees
who seek to come on his premises for the purpose of or
ganizing his employees, are not apposite here
Finally, I reject Respondents contention that the first
amendment and Section 8(c) of the Act preclude a find
ing that Respondents engaged in the unfair labor prac
tices charged here The order which I shall recommend
MOUNTAIN COUNTRY FOOD STORE 981
will not unconstitutionally force Respondents to assist
the charging party in disseminating information' about
its labor dispute The proceeding does not seek to deny
Respondents right to sell Coca Cola products or adver
tise them The FCC access rules imposed on cable opera
tors in Mid West Video Corp v Federal Communications
Commission, 571 F 2d 1025 (8th Cir 1978), are quite dif
ferent from the kind of access that is sought by the
Union here
CONCLUSIONS OF LAW
1 Each of the Respondents is an employuer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 By demanding that union handbillers leave stores
premises while engaged in activity protected under Sec
tion 7 of the Act, Respondents Ramey and Lakeview
violated Section 8(a)(1) of the Act
As a remedy, I shall recommend that Respondents
Ramey and Lakeview cease and desist from engaging in
the unfair labor practices found and take certain affirma
tive action which will effectuate the policies of the Act
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
edi'
ORDER
The Respondents , Mountain Country Food Store Inc,
Lakeview Missouri, and Roswil, Inc, d/b/a Ramey Su
permarkets, Aurora and Monett, Missouri their officers
agents, successors, and assigns shall
1 Cease and desist from
(a) Prohibiting representatives of the Union from dis
tributing handbills as part of protected concerted activity
of demanding that they leave Respondents premises
(b) 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) Post at their respective stores involved in this pro
ceeding (i e , the Ramey Aurora, Missouri store, Ramey
Cleveland Street store in Monett, Missouri, Ramey
Broadway store in Monett, Missouri, and Mountain
Country Food Store, Inc, in Lakeview Missouri) copies
of the attached notice marked Appendices A and
B 18 Copies of the notices, on forms provided by the
Regional Director for Region 17, 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
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
17 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
1e 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