Tecumseh Foodland

National Labor Relations Board - Board Decisions

May 31, 1989

294 N.L.R.B. 486 (N.L.R.B. 1989)

486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Tecumseh Foodland and Local 876 , United Food and
Commercial Workers Union , AFL-CIO. Case
7-CA-24115
May 31, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN, CRACRAFT, AND
HIGGINS
On July 3, 1985, Administrative Law Judge Mi-
chael O. Miller issued the attached decision. The
General Counsel filed exceptions and a brief in sup-
port of the exceptions.
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 modified, and to adopt the recom-
mended Order.
The Respondent operates a retail food store in
Tecumseh, Michigan. The Respondent's store, Te-
cumseh Foodland, is located within a parking lot
adjacent to the main highway passing through the
city, and shares neither its building nor its parking
lot with any other business. Prior to the Respond-
ent's opening on October 24, 1984,1 a Kroger gro-
cery store occupied the premises now held by the
Respondent. Kroger's employees had been repre-
sented by the Union; the Respondent's employees
are unrepresented.
On December 14, a union business representative
and four other persons, none of whom were ever
employed by the Respondent, began picketing and
handbilling at the front entrance of the store. A
covered sidewalk runs along the front of the store;
approximately in the center of the store front is an
open area about 11 feet wide and 21, feet deep in
which the store's entrance and exit doors are locat-
ed. Customers entering the store first go through
the 11-foot entrance into the open area and then
enter through doors located to their left.
The five persons stood on the covered sidewalk
by the entrance opening, as well as in the entrance
area, and handed out handbills to customers enter-
ing and leaving the store. The handbills advised
customers that this was a nonunion store that did
not provide union wages and benefits, and appealed
to them to shop at union stores. The handbills
stated that these individuals had previously worked
at union stores, but had lost their jobs and benefits
when a new store owner not providing union
wages and benefits took over. The handbill also
' Unless otherwise indicated, all dates are 1984
listed unionized food stores in the area. Sandwich-
style picket signs , worn by four of the individuals
handing out handbills, likewise solicited customers
not to shop at nonunion Foodland and to
"PLEASE PROTECT QUALITY JOBS." The
content of the handbills, as well as the explicit
legend appearing on the picket signs, is more fully
described in the attached judge's decision.
The Respondent's owners, Doug Main and Ted
Johnson, received complaints from two customers
within the first 5 minutes of picketing and went out
and told the pickets that they would have to leave.
Johnson informed Union Business Representative
Arlen Haggard that soliciting was not allowed,
pointing to a sign in the window.2 Haggard replied
that he was not soliciting, he was handing out
handbills. Johnson repeated that they would have
to leave. When Haggard inquired what would
happen if they did not leave, Johnson said that he
would call the police and have them escorted out.
Haggard responded that they were not there to
cause any trouble, so they would leave, and he and
the pickets left the store's entrance area and pro-
ceeded out to the parking lot entrances.
The pickets then positioned themselves at one of
the driveway entrances to the parking lot. The Re-
spondent's parking lot extends approximately 170
feet along the highway, with two entrances, which
are about 100 feet apart. The store is set back ap-
proximately 150 feet from the highway. The east
entrance to the parking lot, where the pickets went
upon being asked to leave the store entrance area,
is approximately 36 feet wide, and a public right-
of-way consisting of 8 feet of pavement parallel
and adjacent to the highway extends between the
two entrances. Beyond the pavement is a gravel
path, with about a 24-foot wide grassy area be-
tween the path and the Respondent's parking lot.
Because some of the cars entering and leaving
the parking lot contained only a driver, the pickets
stood both on the sides and in the middle of the en-
tranceway in order to be able to hand the drivers a
handbill. Stopping to receive the handbills caused
congestion along the highway from which the cars
were entering, and some drivers complained to the
pickets that they were afraid of running over them.
On December 17, the pickets returned to the Re-
spondent's parking lot, where they handed out
handbills at both the east and west entrances. They
again stood on both edges and in the center of the
driveways. On that occasion owner Johnson came
out3 and told the pickets that they could not block
2 The specific wording of the sign is not in the record
3 There is no contention that the driveway area from which the Re-
spondent excluded the pickets was public property rather than the prop-
erty of the Respondent as implicitly found by the judge
294 NLRB No. 37
TECUMSEH FOODLAND
the traffic coming into his place of business. He
said that he wanted them out of the middle of the
driveway, so that customers could get in and out.
The pickets then moved to the areas around the
driveway entrances and onto the public right-of-
way adjacent to the entrances. The pickets have
continued to patrol on the public right-of-way and
gravel path, and have sometimes stood on the Re-
spondent's parking lot near the entranceways, but
have not picketed or handbilled in the en-
tranceways since December 17. The Respondent
has not prohibited them from standing on its prop-
erty near the entrance, or from parking their cars
on its parking lot. The pickets ceased attempting to
distribute handbills.
The judge found that the Respondent did not
violate Section 8(a)(1) of the Act by ordering the
Union's pickets and handbillers to leave its proper-
ty, taking into account the number and location of
these individuals at the store's entrance and in the
middle of the Respondent's driveways. In so doing,
he considered the Union's statutorily based right to
engage in lawful consumer handbilling and area
standards picketing, balanced that against the Re-
spondent's private property rights, and concluded
that the Union's gathering of five people in a rela-
tively small area around the store's entrance and its
impeding of the flow of traffic at the Respondent's
driveways exceeded appropriate bounds in which
the Union's trespassory activity might be justified.
For the reasons set forth below, we affirm the
judge's dismissal of the complaint.
In Jean Country, 291 NLRB 11 (1988), we re-
cently reexamined and clarified our analytical ap-
proach in access cases. We noted there that in all
access cases, our 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 private property right
if access should be granted. Consideration of the
availability of reasonably effective alternative
means is especially significant in this balancing
process. But in the final analysis, there is no simple
formula that will determine the result in every
case.4
A number of factors relevant to assessing the
weight of property rights, Section 7 rights, and al-
ternative means of communication were set forth in
Jean Country, but we also noted a certain interde-
pendence of these factors. Thus, we observed,
"whether a particular situs is a vast expanse or
cramped quarters may be relevant both to defining
the strength of the property right and to deciding
the reasonableness of conducting the Section 7 ac-
487
tivity on its perimeter as an alternative means of
communication."5 While we largely agree with the
judge's assessment of factors relevant to the proper
accommodation of Section 7 and property rights in
this case, we have decided to fully state our rea-
sons for dismissing the complaint on the basis of
the rationale in Jean Country.
In agreement with the judge, we find that the
Union' s message here was primarily intended to
benefit union members employed elsewhere but did
have a potential to benefit the Respondent's em-
ployees, that the message was directed at a diverse
population consisting of the Respondent's custom-
ers, which was not readily identifiable, and that
this audience could not reasonably be reached by
direct personal contact, telephone, or mail. We
likewise agree that it would not be reasonable to
insist that the Union undertake the burden and ex-
pense of a public media campaign when there was
no certainty that such a campaign would even
reach its intended audience.
We further agree that, due to the detailed nature
of the Union's message in which it sought to give
potential customers information on which to decide
whether to shop at the Respondent's store and to
inform them of stores at which they might shop if
they preferred unionized stores, the information
could not be fully contained on a picket sign. We
also agree , however, that the Respondent was priv-
ileged to insist that the handbillers and pickets not
stand in the driveways of its property impeding the
flow of traffic. Indeed, Union Business Representa-
tive Haggard himself testified that the Union dis-
continued handbilling at the property entrances be-
cause it was too dangerous.
Like the judge, we find that a proper balancing
of the parties' rights here would permit the Union
to distribute its handbills in some manner and at
some place on the Respondent's property. We find,
however, that the manner in which the Union here
sought to exercise its Section 7 right-by congre-
gating five pickets and handbillers in the small area
near the entrance to the Respondent's store-im-
permissibly impaired the Respondent's private
property rights. The Respondent was the sole oc-
cupant of the property on which its store and park-
ing lot are located, and there was no evidence that
the Respondent allowed anyone onto its property
other than for the purpose of shopping at its store.
Nor was there evidence of usage of the property
by any other group or organization; the property in
fact appears to have been posted against all solicita-
tion. As the judge noted, Union Business Repre-
sentative Haggard testified without contradiction
4 Jean Country, supra at 14 5 Id at 13
488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that store owner Johnson referred to a sign in the
store window prohibiting solicitation and threat-
ened to call the police if the pickets and handbillers
refused to leave.
Record photographs and exhibits show approxi-
mately an 11-foot opening from the covered side-
walk fronting the store into the 11- by 21-foot en-
trance area in which the store's doors are located.
Soft drink and newspaper vending machines are
also situated in the entrance area. When asked by
the judge to'mark on an exhibit where the four or
five pickets and handbillers were standing when
asked to leave the front of the store, Union Busi-
ness Representative Haggard marked locations on
each side of this 11-foot opening. Four of the indi-
viduals standing in these locations were wearing
sandwich-style picket signs.
We find, in agreement with the judge, that the
Respondent was not required to surrender access
to its property without limitation to nonemployees
whose numbers and location would tend to impede
the access of patrons to its store.6 The Respondent
had maintained a substantial private property inter-
est in its commercial establishment, and the Union
could just as effectively have communicated its
message to the customers by locating one or two
pickets to' distribute handbills "near the store's
doors, or perhaps by having the handbills distribut-
ed at some other location on the property. There-
fore, because we find that the manner in which the
Union exercised its Section 7 right impermissibly
interfered' with the Respondent's private property
right to have its store's entrance be free and uncon-
gested, and because the Union could effectively
communicate its message to the Respondent's cus-
tomers in a less physically obtrusive way, we con-
clude that the Respondent did not violate Section
8(a)(1) of the Act 'by ordering the Union's pickets
and handbillers to leave the areas near the store's
entrance and in the middle of its driveways.' Ac-
s The General Counsel has excepted to the judge's reliance on hearsay
evidence to establish that the pickets orally insulted patronsias well Spe-
cifically, owner Johnson testified, over the General Counsel's objection,
that an older lady had told him that the pickets told her not to come into
the store and that she heard cussing behind her back when she proceeded
into the store anyway Johnson further testified that an elderly gentleman
who had to use the handicapped ramp told him that the pickets were in
his way, and that he had a hard time getting by them Because we find
that the evidence with respect to the number and placement of the pick-
ets warrants dismissal of the complaint , we find it unnecessary to rule on
the General Counsel's exception
' On the facts of this case, the critical aspect in balancing the Sec 7
and property rights is, in our view, whether the number and placement of
the pickets unnecessarily,interfered with the Respondent's property rights
because they were reasonably likely to interfere with access of patrons to
the store Unlike our dissenting colleague, we would not require direct
evidence that ingress or egress of patrons was actually interfered with in
order to conclude that the Union impermissibly impaired the Respond-
ent's rights to have access to its store unimpeded
The underlying principle at issue is one of accommodation-specifical-
ly, "how to accommodate the exercise of rights guaranteed under Section
cordingly, we shall adopt the judge's recommended
Order dismissing the complaint.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
MEMBER CRACRAFT, dissenting.
I respectfully dissent. Contrary to my colleagues,
I am unable to conclude that the manner in which
the Union exercised its Section 7 right diminished
that right to such an extent that it was outweighed
by the property interest in a grocery store side-
walk. This is so particularly where, as here, there
was no effective alternative means with which to
publicize the dispute. Accordingly, I would find
that the Respondent violated Section 8(a)(1) of the
Act by ordering the Union's pickets and hand-
billers to leave the area near the store's entrance.
I completely agree with my colleagues' analysis
of this case up to a certain point. Initially, I agree
that the Union was engaged in protected activity
when it conveyed the message that the Respond-
ent's store was nonunion and encouraged custom-
ers to patronize unionized facilities. Further, I
agree that the Union's intended audience could only
be effectively reached on the Respondent's proper-
ty rather than at the perimeter or by use of public
media.
Finally, I agree that the Respondent's private
property interest in its commercial establishment,
which was solely occupied by it and utilized exclu-
sively for the purpose of shopping, was substantial
but may nevertheless be required to yield to the
Section 7 right. However, unlike my colleagues, I
do not conclude that the manner in which the
Union exercised its Section 7 right impermissibly
impaired the Respondent's private property rights.
The areas at which the picketing and handbilling
initially occurred were an entry area 11 feet wide
7 of the Act with a property owner's right to protect his property against
intrusions by those whom he has not invited to enter " Jean Country, 291
NLRB 11 (1988) This accommodation must be obtained, we are told by
the Supreme Court, "with as little destruction of one as is consistent with
the maintenance of the other " NLRB v Babcock & Wilcox Co., 351 U.S
105, 112 (1956) Thus, while some yielding of a property right may be
required to avoid destruction of a Sec 7 right, that required yielding
should not be more than is necessary As stated in Jean Country, we are
charged with permitting infringements on one right only to the extent
necessary to maintain the other Jean Country, supra, at 12
In balancing the Sec 7 and property rights here, we find the reasona-
ble likelihood that patrons would have difficulty in gaining access to the
Respondent's store due to the number and location of the pickets and
handbillers at the store's only entrance to exceed that infringement of the
Respondent's property rights which is necessary in order to accommo-
date the exercise of rights guaranteed by Sec. 7 Contrary to our dissent-
ing colleague , the Union did have at least one alternative means of com-
municating its messarge it could simply have placed fewer persons at the
store's entrance doors
TECUMSEH FOODLAND
and 21 feet deep and a 6-foot wide sidewalk run-
ning along the front of the store. These areas are
open and adjoin the Respondent's parking lot. In
the 5 minutes the Union was able to communicate
its message to the Respondent's customers before
being required to leave, the five individuals who
handbilled positioned themselves on the sidewalk
near the front of the entry area at opposite ends of
the 11-foot wide opening to the area. Four of the
five handbillers also acted as pickets, wearing sand-
wich-style signs that were tapered to their bodies
and did not extend beyond their sides. According-
ly, the use of pickets created no greater obstruction
than that entailed by five people standing near the
front of the entry area.
Although my colleagues conclude that the num-
bers and location of the handbillers/pickets would
"tend to impede the access of patrons to [the Re-
spondent's] store," the record contains no direct
evidence that any interference with ingress or
egress occurred. I would require such proof before
concluding that the Union's manner of engaging in
its Section 7 right diminished that right. The
danger of drawing conclusions on interference with
customer ingress and egress absent direct evidence
is readily evident in this case. On the basis of such
a conclusion without evidence, the majority here
permits the exclusion of a union from private prop-
erty while essentially acknowledging there are no
alternative means of communication.1
Absent such direct evidence, I conclude that the
Union's exercise of its Section 7 right did not im-
permissibly interfere with the Respondent's private
property right in light of the absence of reasonable
alternative means. My colleagues' speculation that
"the Union could just as effectively have communi-
cated its message to the customers by locating one
or two pickets to distribute handbills near the
store's doors or perhaps by having the handbills
distributed at some other location on the property"
is illusory. The Union was ordered off the property
without distinction for where they were standing.
Even if I were to agree that the manner in
which the Union picketers and handbillers exer-
cised their rights in this case diminished their Sec-
tion 7 rights, I would not find that those rights di-
minished to the point that the Respondent's proper-
ty rights prevailed. Although it is appropriate for
the Board to examine the manner of exercise of a
Section 7 right, I would not allow this factor such
predominance in assessing the strength of the right.
i The majority states that the Union 's alternative means of communica-
tion was to place fewer persons at the store 's entrance doors Where, as
here, the Union was asked to leave private property without specifically
being told that picketer/handbiller density was the cause of the ejection,
I would not hold the Union to know of such an alternative Therefore, I
would not find such an alternative to be reasonable
489
In my view, the manner in which a clearly protect-
ed Section 7 right is exercised should only be
relied on to countenance an employer's total exclu-
sion of the exercise of that right in exceptional cir-
cumstances and then only based on direct evi-
dence.2 Neither is present here.
2 The majority states that they would not require more yielding of one
of the juxtaposed rights than is necessary and would permit infringements
on one right only to the extent necessary to maintain the other And yet,
the majority extinguishes the employees' Sec 7 right here without any
direct showing of a significant diminishment of the property right
James P. Stevens, Esq., for the General Counsel.
John J. Mallon, Esq. (Brian M Smith & Associates), of
Troy , Michigan , for the Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. This
case was heard on 2 May 1985 in Detroit, Michigan,
based on an unfair labor practice charge filed by Local
876, United Food and Commercial Workers Union,
AFL-CIO (the Union), on 17 December 1984 and a
complaint issued by the Acting Regional Director of
Region 7 of the National Labor Relations Board (the
Board), on 29 January 1985. The complaint alleges that
Tecumseh Foodland (Respondent), violated Section
8(a)(1) of the National Labor Relations Act (the Act), by
precluding the Union from handbilling and picketing on
Respondent's property in circumstances where no other
location offered a reasonable alternative for such activi-
ties. Respondent's timely filed answer denies the commis-
sion of any unfair labor practices.
All parties were afforded full opportunity to appear, to
examine and to cross-examine witnesses , and to argue
orally. A brief was filed by Respondent. That brief, and
the cases cited by the General Counsel at the close of
hearing, have been carefully considered.
Based upon the entire record, including my observa-
tion of the witnesses and their demeanor , I make the fol-
lowing
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS AND THE UNION'S LABOR
ORGANIZATION STATUS-PRELIMINARY
CONCLUSIONS OF LAW
Respondent is a Michigan corporation engaged in Te-
cumseh, Michigan in the operation of a retail food store.
Jurisdiction is not in issue. The complaint alleges, Re-
spondent admits (either in its answer or by stipulation),
and I find and conclude that Respondent is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The complaint alleges, Respondent admits, and I find
and conclude that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting
Respondent 's grocery store stands within a parking lot
adjacent to the main highway passing through of Tecum-
seh, Michigan (M-50). That store occupies the only
building within that parking lot and no other business en-
terprises share either the parking lot or the building.
Along the front of the store is a covered sidewalk
which is between 6 and 11 feet wide . The entrance to
the store is directly off this sidewalk , near the center of
the store front , and is itself an open area approximately
11 feet wide by 21 feet deep . The doors into the store
are within this latter area.
Respondent 's parking lot extends from the front of the
store approximately 150 feet to the highway and occu-
pies approximately 170 feet along that highway. There
are two driveway entrances , about 100 feet apart, from
the highway into the parking lot. The entrance to the
east is about 30 feet wide and the second entrance, to the
west , is 36 feet wide . Between the two entrances there is
a public right-of-way consisting of 8 feet of pavement
parallel and adjacent to the highway, a 2-foot-wide
gravel path , and a 24-foot-wide grassy area (which is
somewhat depressed for drainage ) immediately adjacent
to the parking lot. There is no curb and there appear to
be no sidewalks for pedestrian traffic. The traffic on M-
50 moves at speeds of 30 miles per hour to the posted
speed limit of 45 miles per hour or faster
B. Picketing and Handbilling
Respondent's store opened for business on 24 October
1984.1 It has a work force of about 35 The store was
formerly owned by Kroger and, as, a Kroger store, its
employees had been represented by the Union. Respond-
ent's employees , it appears , are unrepresented.
On 14 December, sometime before noon, Arlen Hag-
gard, the Union's business representative, arrived at the
front entrance of Respondent's store accompanied by at
least four other individuals, none of whom had been or
were currently employed in this store. Those four were
wearing sandwich board type picket signs bearing the
following legend:
PLEASE PROTECT
QUALITY JOBS
DO NOT
SHOP
FOODLAND
NON-UNION
The five persons stood on the 6-feet -wide covered
sidewalk by the opening to the store's entranceway and
in the 11 - foot by 21-foot entranceway itself. They dis-
tributed a handbill to customers entering and leaving the
store . In that handbill , the Union asserted that these indi-
viduals had previously worked in unionized food stores,
enjoyed "a decent wage, health insurance , and looked
I All dates hereinafter are 1984 unless otherwise specified
forward to a nice pension." They lost those jobs and
benefits, it claimed, when a new store owner took over,
hired new and "mainly part -time employees" and did not
provide union wages and benefits. After giving further
details concerning the trend toward nonunion conditions
in food stores, the handbill asserted the Union's intention
to stem this trend and asked for the readers' support.
Specifically, the recipients of the handbill were asked:
HELP US AND YOURSELF
DON'T SHOP
NON-UNION FOOD STORES
SHOP UNION
On the reverse side of the handbill, the shoppers were
referred to 25 unionized food stores.
After about 5 minutes, during which time they had al-
legedly received comments from two incoming custom-
ers,2 Respondent's owners, Doug Main and Ted John-
son, spoke with Haggard and the pickets. Johnson told
Haggard that they were on his private property and
would have to leave. After a brief discussion,3 Haggard
and the pickets left the store front area and proceeded to
the driveway entrances to the parking lot. With pickets
standing in the middle of the 30-foot driveway at the east
end of the parking lot and on both the left- and right-
hand sides of that driveway, an attempt was made to
pass the handbills to customers entering and leaving the
parking lot . In most cases, the car windows were rolled
up due to the weather conditions and the efforts at distn-
bution in this fashion caused congestion along the high-
way whenever a driver would stop to receive a flyer.
Some drivers complained to them about the blockages.
Because some of the cars contained only a driver, at-
tempts to pass handbills from the right-hand side of the
car, which the pickets could possibly reach from the
sides of the driveway, were ineffective.
Haggard and the pickets returned to the parking lot on
17 December. On that day, they attempted to distribute
the handbills to cars entering and leaving both the east
and west driveways They stood at various points near
the center of the driveways so as to be able to reach the
drivers' windows and they also stood on both edges of
the driveways . Johnson came out once again and as he
recalled it, told the pickets that they could not stand in
the driveway and block traffic entering or leaving his
parking lot. He believes that he told them either to step
off to the side of the driveways or to go into the public
right of way.4
2 No direct evidence of confrontations or blocking was offered. Re-
spondent 's vice president testified that "an older lady ," whom he de-
scribed as "upset ," reported that the pickets had "told her not come into
the store " She allegedly heard cussing behind her back as she entered
Similarly , an "elderly gentleman" who had come up the handicap ramp
at the east end of the sidewalk complained to Johnson that he had a
"hard time" getting by the pickets
2 Haggard testified, without contradiction, that Johnson referred to a
sign prohibiting solicitation and threatened to call the police if they re-
fused to leave
4 The testimony of picket Peggy Winzeler is essentially consistent with
that of Johnson She acknowleged that the pickets were both in and
alongside the driveways As she recalled the exchange with Johnson, he
Continued
TECUMSEH FOODLAND
Since 17 December, the Union has continued to main-
tain pickets displaying their signs in the areas around the
driveway entrances to Respondent's parking lot. In gen-
eral, they have stationed themselves on the public right
of way adjacent to these driveways, on occasion, they
have stood on Respondent's property in the parking lot
near the entrance. In addition, the pickets regularly park
their cars in Respondent's parking lot near the driveway
entrances. Respondent has not prohibited them from
either standing on its property while displaying signs or
from parking their cars in its lot. The Union has ceased
attempting to distribute its flyer to those entering or
leaving the parking lot.
The only newspaper published locally in the Tecsum-
seh, Michigan area is the Weekly Tecsumseh Herald. On
occasion, Respondent advertises in a supplement. distrib-
uted with that paper, but not in the paper itself. There
are also three radio stations covering the county which
includes Tescumseh; Respondent does use those stations
for advertising purposes. It does not appear that the
Union attempted to present its message, as encompassed
on the picket signs and flyer, through these media out-
lets.
C. Analysis and Conclusions
Involved herein is the necessity of balancing the
Union's statutorily based right to engage in lawful con-
sumer handbilling and area standards picketing5 against
the employers' private property rights "and to seek a
proper accommodation between the two." Hudgens v.
NLRB, 424 U.S. 507, 521 (1976); Central Hardware Co. v.
NLRB, 407 U.S. 539, 543 (1972). As the Court noted in
Hudgens, "[w]hat is `a proper accommodation' in any sit-
uation may largely depend upon the content and the con-
text of the Section 7 rights being asserted,"s that the
"locus of that accommodation .. . 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."7 Further,
the Court concluded, consistent with its earlier earlier
decisions in Central Hardware and NLRB v. Babcock &
Wilcox Co., 351 U.S. 105 (1965), that the Board is man-
dated to accommodate the Section 7 right of the one
party with the private property rights of the other "with
as little destruction of one as is consistent with the main-
tenance of the other."8
In Giant Food Markets, supra, the Board applied the
foregoing standards to a situation bearing great similarity
to the instant case There, on a privately owned tract of
land, Giant Food took over a store previously operated
by Allied. When that store had been operated by Allied,
the employees had been represented by the union. Giant
directed that they leave the area from which they were attempting their
distribution and move further out on the paved area into the public right
of way The pickets complied, without argument
5 There can be no question but that the Union's handbilling and picket-
ing, when viewed separately from the question of where it was conduct-
ed, was lawful and protected See Giant Food Market, 241 NLRB 727
(1979), enf denied on other grounds and remanded, 663 F 2d 18 (6th Or
1980)
6 Hudgens, supra at 521
7 Hudgens, supra at 522
8 Babcock & Wilcox at 112
491
hired none of Allied's employees and its employees were
unrepresented. The union picketed and distributed hand-
bills on the sidewalk immediately in front of the Giant
store. Those signs and handbills were, in terms of both
languages and intent, virtually identical to the picket
signs and handbills involved herein The occupants of
the property directed the union handbillers and pickets
away from the store entrances and off of the property.
The one distinguishing factor between Giant Food and
the instant case is that, in Giant Food, a neutral, unin-
volved employer was located on the same tract of land
and shared the building with Giant.
The Board weighed the protected nature of the
union's picketing, the fact that the picketing was intend-
ed to benefit employees represented by the union and
could potentially benefit the employees of the primary
employer, the fact that picketing at the entrance to the
store rather than a point further away and off Respond-
ent's property would be less likely to enmesh the neutral
employer who shared the building with the primary, and
the fact that a requirement that it handbill and picket at a
substantial distance (250 feet) from the entrance would
too greatly dilute the union' s message for it to be mean-
ingful against the employer's private property rights. It
concluded that "Respondent's property rights must yield
to the pickets' Section 7 rights", the employer' s insist-
ence upon removal of the pickets from its property was
found to violate Section 8(a)(1) of the Act In reaching
this conclusion the Board noted that where the persons
to whom the communication is directed are not a readily
identifiable group, such as employees, other means of
communication such as the use of the mail, telephone, or
personal contact might not afford reasonable access.
On review of the Board's decision in Giant Food, the
court of appeals essentially agreed with the Board 's legal
conclusions However, it deemed "[b]oth the dilution of
message and enmeshing neutral employers' theories . .
[to be] without case authority and . . . without reference
to supporting facts in the record," notwithstanding that
they had "the force of logic." Thus, finding no substan-
tial evidence on the record as a whole to support the
Board's findings, the court ordered the Board's Order set
aside and the case remanded for further evidence.
In the instant case, there is no issue concerning the en-
meshing of neutral employers. As previously noted, Re-
spondent was the sole occupant of the property and the
message was directed at Respondent's customers.9 As in
Giant Food, that message was intended to benefit union
members employed elsewhere and had the potential to
benefit Respondent's employees Also, as in Giant Food,
the Union 's message was directed at a diverse popula-
tion, Respondent's customers, a group not readily identi-
fiable which could not reasonably be reached through
direct personal contact, telephones, or the mail. Neither,
do I believe, would it be reasonable to insist that the
Union undertake the burden and expense of a public
9 Respondent's contention that the Union's handbilling and picketing
was directed at Kroger, the former operator of this store, and that Re-
spondent was merely a neutral employer, is without merit The Union's
handbilling and picketing were clearly directed at Respondent, the pri-
mary employer
492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
media campaign when it could have no certainty or even
reasonable expectation that it would reach its intended
audience. 1 ° Moreover, the Union's message was relative-
ly detailed. It sought to inform Respondent's customers
of the changes which had taken place with the change in
ownership in that and other stores, the effects of those
changes on the employees, and the alternatives to shop-
ping at Respondent's establishment. The Union sought to
give those potential customers information on which to
make a decision as to whether or not they should favor
Respondent with their business, and to inform those po-
tential customers as to the stores at which they might
shop if they preferred to shop in unionized establish-
ments. Such information, it is obvious, could not be fully
contained on a picket sign which a passing driver could
absorb and understand while driving into Respondent's
lot; a more detailed statement, such as the handbill, was
necessary to impart the full message. Picketing, alone,
would not suffice.
The evidence proffered by the General Counsel estab-
lishes that the attempted distribution of the Union's
handbills from the sides of the driveways to the occu-
pants of automobiles entering the parking lot was ineffec-
tive. On the other hand, the testimony of General Coun-
sel's witnesses also establishes that the attempted distribu-
tion of those handbills from the middle of the driveways
caused drivers to stop their vehicles and traffic to back
up into the highway thus endangering both the pickets
and motorists. From this latter evidence, I must conclude
that Respondent was privileged to insist that the hand-
billers and pickets not stand in the driveways on its prop-
erty, impeding the flow of traffic.
Considering the nature of the Union's message, the ob-
vious ineffectiveness of attempting to convey the full
import of such a message on picket signs, the foregoing
conclusions with respect to distributions at the drive-
ways, and the intended audience of that message, I have
no doubt but that a proper balancing of the parties'
rights here would permit the Union to distribute its mes-
sage in some manner and at some other places on Re-
spondent's property Montgomery Ward & Co., 265
NLRB 60 (1982). The question here, however, is wheth-
er Respondent violated Section 8(a)(1) when it directed
this group of five pickets and handbillers to leave its
property" i after they had gathered in and around the im-
mediate area of the store entrance and precipitated, in
only 5' minutes, two customer complaints.12 On balance,
I am not convinced that the General Counsel has sus-
tained its burden of proving this violation. t 3 The Union
is entitled, in the exercise of its statutory rights, to at-
tempt to persuade Respondent's customers to shop else-
where. I do not believe, however, that an owner of
property is required to surrender all access to that prop-
erty to nonemployees whom it has reason to believe,
from customer complaints and its own observations as to
the number and location of those individuals, are dis-
couraging patronage by physically blocking or orally in-
sulting its patrons. As the Board stated in Montgomery
Ward & Co., 265 NLRB 60(1982), "the Union had a right
to handbill consumers on Respondent's property, and to
do so effectively, while simultaneously accommodating and
disturbing as little as possible Respondent's private property
rights." (Emphasis added.) Here, the Union gathered
with five people in a relatively small area surrounding
the store's entrance. Neither do I believe that the proper-
ty owner must bear the burden of setting the limits as to
the extent or location of the Union's activity, or to prove
that the Union's conduct constituted restraint or coercion
within the purview of Section 8(b)(1)(A). Inasmuch as it
is the Union which seeks to engage in its otherwise pro-
tected activity on Respondent's property, I believe that
the proper reading of the relevant precedent, particularly
the Supreme Court decisions in Babcock & Wilcox, Hud-
gens v. NLRB, and Sears v. Carpenters, supra, requires
that the Union establish the proper bounds for its activity
and prove that it remained within those bounds in order
to justify its trespassory activity.
Accordingly, as I find herein that Respondent did not
violate Section 8(a)(1) by ordering the Union's picketers
and handbillers to leave its property under the particular
circumstances of this case, i.e, the number and location
of such handbillers and picketers at the store's entrance
and in the middle of Respondent's driveways, I shall rec-
ommend that the complaint be dismissed in its entirety.
CONCLUSION OF LAW
Respondent has not engaged in the unfair labor prac-
tices alleged in the complaint.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed14
ORDER
10 In reaching this conclusion, I note that Respondent apparently did
not consider radio or regular newspaper advertising to be worth the ex-
pense It did not advertise on the radio stations and only occasionally
used the newspaper to carry its separate advertising flyer
11 In Giant Food at 729, the Board held that "a demand made by an
owner or leaseholder of the property that pickets remove themselves
from that property is a sufficient interference with the exercise of pro-
tected activity coming within ambit of Section 8(a)(1) of the Act " A
threat of forceable removal is unnecessary to invoke the Act's protection
12 While there was no direct evidence concerning the conduct which
precipitated these complaints, neither was any evidence proffered to con-
tradict Johnson's testimony regarding them In any event, it was on the
basis of those complaints and not on any personal observations of miscon-
duct that Respondent acted Cf Seattle-First National Bank, 243 NLRB
898 (1979), in which the Board upheld the right of employee pickets to
conduct their trespassory picketing on Respondent's property, noting
inter alia, that there was no evidence of misconduct.
The complaint is dismissed in its entirety.
13 See Sears, Roebuck & Co v San Diego County District Council of
Carpenters, 436 U S 180, 205 (1978) In that case , the Supreme Court,
dealt with the question of whether state jurisdiction over trespassory area
standards picketing was preempted by the National Labor Relations Act
In concluding that it was not, Justice Stevens, writing for the majority,
drew upon the Court's experience with trespassory organizational solici-
tation by nonemployees in NLRB v Babcock & Wilcox, supra, and stated
that the union bore a heavy burden to justify its trespass by showing that
no other reasonable means of communicating its message existed (or that
the employer's access rules discriminated against union solicitation)
14 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