Thriftway Supermarket, A Single Employer

National Labor Relations Board - Board Decisions

May 24, 1989

294 N.L.R.B. 173 (N.L.R.B. 1989)

THRIFTWAY SUPERMARKET
Granco , Inc., d/b/a Thriftway Supermarket; Blan-
tom Corporation , d/b/a Thriftway Supermarket;
and Bland A. Painter , Jr., d/b/a Thriftway Su-
permarket , a Single Employer and Food and
Commercial Workers Union Local No. 278,
UFCW International Union , AFL-CIO, CLC.
Cases 5-CA-16765 and 5-CA-17018
May 24, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On October 24, 1985, Administrative Law Judge
Benjamin Schlesinger issued the attached decision.
The Respondent filed exceptions and a supporting
brief and the General Counsel and the Charging
Party filed answering briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions2 and to adopt his recommended
Order 3
The judge's decision issued before Jean Country,4
which clarified our analytical approach for resolv-
ing nonemployee access to private property cases.
As more fully set forth in the judge's decision, the
Union sought access to Respondent's property to
inform customers by means of handbills and picket
signs that the Respondent had committed and not
remedied serious unfair labor practices5 and to
i The Respondent has excepted to some of the judge's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 We find it unnecessary to address the judge's conclusion that the Re-
spondent violated Sec 8(a)(1) of the Act by instituting criminal proceed-
ings against Bittner The Respondent ' s exceptions to this conclusion do
not meet the minimum requirements of Sec 102 46(b) of the Board's
Rules and Regulations The Respondent merely cites to the judge's deci-
sion and fails to allege either in its exceptions or its brief in support there-
of with any degree of particularity the error it contends the judge com-
mitted in so concluding, or on what grounds it believes the judge's deci-
sion as to this violation should be overturned In these circumstances, we
find in accordance with Sec 102 46(b)(2) that the Respondent's exception
on this point may be disregarded See Bonanza Sirloin Pit , 275 NLRB 310
(1985) We also note that no party has excepted to the judge ' s finding
that the Respondent did not violate the Act by instituting criminal pro-
ceedings against David
a In the absence of any evidence that the number of picketers was an
issue in this case , Member Cracraft would modify par 2 (a) of the recom-
mended Order to delete the phrase "so long as that activity is conducted
by a reasonable number of persons "
4 291 NLRB 11 (1988)
5 At the time in question , Judge Claude R Wolfe ' s decision in a prior
case had issued finding the Respondent violated Sec , 8(a)(1) and (3) and
recommending a bargaining order under Gissel Packing Co, 395 U S 575
(1969) Most of Judge Wolfe's findings and his recommendation of a bar-
173
urge them not to patronize the Respondent's store.
The activity was for the benefit of the Respond-
ent's employees represented by the Union at the
place where they were employed and where the
Respondent conducted its business. As the judge
found, the Respondent's property6 was held open
to the public and it allowed other uses-such as
hotdog and bake sales-on its property.
The Union began its information campaign on
October 26, 1984, with four persons wearing picket
signs around their necks and distributing handbills
that contained further information One person was
stationed on the grassy island , two in the front
parking lot, and one in the lot near the supermarket
entrance One of the picketer/handbillers, Richard
Adams, distributed 100 handbills on the first morn-
ing He testified that some customers who received
the handbill after they had parked returned to their
car and left the premises without going into the
store.
On the afternoon of October 26, a policeman ac-
companied by the Respondent's store manager and
its president told the picketer/handbillers that if
they did not leave the parking lot they would be
arrested for trespassing. They then moved to the
public grassy island . Adams testified that they did
not give out handbills from the island because the
highway and throughway are very congested and
they did not want to stop the flow of traffic or
cause an accident James Hepner, also a
picketer/handbiller, testified that Highway 11 was
a major thoroughfare that gets congested and is
busy He stated that the picketer/handbillers feared
an accident would be caused if they "gave out
handbills or even talked to people and tried to ex-
plain what was going on as they turned off of
Route 11." The Respondent did not dispute the
characterizations of the traffic or safety consider-
ations.
On October 29, two picketer/handbillers re-
turned to the parking lot and two remained on the
island. That afternoon, following threats and vitu-
peration by the store manager, they were confront-
ed by a policeman and three managers of the Re-
spondent. The policeman told them that they were
obstructing the Respondent' s business and that he
was giving them a designated area in which to
picket. The designated area was at the right side of
gaining order were adopted by the Board 276 NLRB 1450 (1985), enfd
mem 808 F 2d 835 (4th Cir 1986)
5 The Respondent 's supermarket was located in a leased 110-foot-wide
building adjacent to a vacant building that was previously used as a post
office In front of and to the sides of the supermarket were parking lots
and throughways The two main entrances to the property were in front
of the store off State Route 11 , a two -lane road with a center turn lane
and a speed limit of 35 miles per hour Between the highway and the
parking lot was a state -owned grass island 90-feet long and 15-feet deep
294 NLRB No. 7
174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the supermarket, next to the former post office, far
from the supermarket's single customer entrance.
At the request of the Respondent's president, the
policeman told the picketer/handbillers that they
could not give handbills to persons in cars, that the
customer would have to come to the designated
area to receive one The officer stated that if they
left the designated area they would be arrested for
trespassing and would go to jail. Adams protested
to the policeman that there was no way they could
handbill from the designated area but was told to
stay within the designated area. According to
picketer/handbiller James Hepner, the policeman's
final words before leaving were. "Everything's
square. I don't want to discuss anything else. I
don't want to come back. If I come back, I am
going to take you to jail."
From their earlier observation, the picketer/-
handbillers knew that very few people parked in
the parking lot near the designated area because
there was nothing near the closed post office to
prompt one to go there. Hepner also testified that
while they stood in the designated area a person
drove up in a car, asked what they were doing and
reached for a handbill. Pursuant to the policeman's
warning, they requested the person to park and
return for a handbill. The driver did park but went
into the supermarket and left without returning for
a handbill. Also while in the designated area,
Hepner observed that, in addition to having no cus-
tomer contact there, cars on the road to the side of
the store could not see their picket signs because of
a projection of the building and that the picket
signs could not be seen from the highway because
of the distance.
The picketer/handbillers returned to the public
grassy island that afternoon and remained there
through December 22. As the judge found, they
distributed handbills from the island only when a
customer returned for one after parking his car, a
very rare occurrence.
Picketers/handbillers returned to the Respond-
ent's parking lot on two more occasions. On De-
cember 22, picketer Adams was, as the judge
found, intensely harassed by the Respondent's
president. On December 24, the Respondent insti-
gated criminal charges against two of the
picketer/handbillers who were involved in a dis-
pute with a customer. The picketer/handbillers did
not return to the Respondent's premises after De-
cember 24.
As noted earlier, Jean Country clarified the ana-
lytical approach for resolving conflicts between
Section 7 and private property rights. In that case,
the Board stated:
Accordingly, 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 We view the consideration of the
availability of reasonably effective alternative
means as especially significant in this balancing
process. In the final analysis however, there is
no simple formula that will immediately deter-
mine the result in every case.
Applying the Jean Country analysis to this case,
we initially find that the Respondent leases the
Thriftway store and property on which it is locat-
ed and, therefore, that the Respondent's conduct
with respect to the union picketer/handbiller was
based on a legitimate property interest As previ-
ously noted, however, the public is generally invit-
ed onto the Respondent's property and the Re-
spondent has allowed access to noncustomer per-
sons or groups other than the Union, thereby
weakening the property rights.
The Section 7 activity asserted here, informing
potential customers of unfair labor practices com-
mitted by the Respondent, involves an important
Section 7 right. The activity was for the benefit of
the Respondent's employees by the Union that rep-
resented them The picketing and handbilling were
a result of the Respondent's conduct that the Board
found unlawful and sufficiently severe to warrant a
Gissel bargaining order. The Thriftway store was
where the Respondent's unfair labor practices oc-
curred. Thus, the target of the Union's activity was
at the situs where the picketing and handbilling oc-
curred, and that situs was the place where affected
employees were employed. We also agree with the
judge that, based on the evidence offered in this
proceeding, there is little, if any, basis to find that
the Union's activity disrupted the Respondent's
business or inconvenienced its customers. We
therefore find that the Section 7 right here is a
strong one.
The Union had two alternative means for com-
municating with its intended audience It could
either conduct its activity from the edge of the Re-
spondent's store furthest from the only entrance, or
from the public, grassy island between the parking
lot and highway in front of the store.' Neither of
these was a reasonable, effective alternative means
of communication As the picketer/handbillers
were aware, very few people came near the desig-
nated area because there was no customer destina-
tion near it. Moreover, the policeman's prohibition,
7 We agree with the judge's finding that mass communication was not
a reasonable alternative
THRIFTWAY SUPERMARKET 175
at the Respondent's insistence, of giving handbills
to anyone in a car further limited this alternative's
effectiveness. As Hepner's experience while in the
designated area illustrated, even if potential cus-
tomers would be interested in a handbill while in
their cars, they would not walk out of their way to
get it.
We find that picketing and handbilling from the
grassy island was also not a reasonable alternative.
State Highway 11 had a 35-mile-per-hour speed
limit with a traffic lane next to the island. It was
uncontested that it was busy and congested. In
these circumstances, we find that the picket-
er/handbillers' fear of causing an accident or
blocking traffic if they carried out any of their ac-
tivities from there was a reasonable fear. Moreover,
the policeman's prohibition of giving handbills to
persons in cars was not limited in any way and was
accompanied by a threat to take them to jail if he
had to come back. In that circumstance we would
not require the picketer/handbillers to test the po-
liceman's meaning As Adams testified, it was
"very seldom" that people would return to the
island to get handbills after they had parked their
cars
In these circumstances, we agree with the
judge's finding that the Respondent's property
rights must yield to the Union's Section 7 rights
and that Respondent violated Section 8(a)(1).
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent Granco, Inc.,
d/b/a Thriftway Supermarket; Blantom Corpora-
tion, d/b/a Thriftway Supermarket; and Bland A.
Painter, Jr, d/b/a Thriftway Supermarket, a single
employer, Roanoke, Virginia, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order
Mark M. Carissimi, Esq., for the General Counsel
Fred F Holroyd, Esq. (Holroyd & Yost), of Charleston,
West Virginia, for the Respondent
Carey Butsavage, Esq. (Lechner & Butsavage, P.C.), of
Washington, D C, for the Charging Party
DECISION
FINDINGS OF FACT AND CONCLUSIONS OF LAW
BENJAMIN SCHLESINGER , Administrative Law Judge
In 1980, Charging Party United Food and Commercial
Workers Union , Local No 278, UFCW International
Union, AFL-CIO, CLC (Union), began a campaign to
organize the employees of Respondent Granco, Inc.,
d/b/a Thriftway Supermarket , Blantom Corporation,
d/b/a Thriftway Supermarket , and Bland A Painter, Jr,
d/b/a Thriftway Supermarket , three Virginia supermar-
kets As a result of Respondent's conduct during the
campaign, the Union filed unfair labor practices charges,
a complaint issued (Cases 5-CA-12756, 5-CA-12855, 5-
CA-13358, and 5-RC-11316); and hearings were held in
August and September 1981 On 6 April 1982, Adminis-
trative Law Judge Claude R Wolfe issued his decision
(JD-158-82), finding that Respondent violated the Na-
tional Labor Relations Act, 29 U.S C Sec 151 et seq in
numerous respects and ordering Respondent to correct
its violations and to bargain with the Union
Exceptions to that Decision were filed The Union, ap-
parently hoping thst the proceeding would be disposed
of expeditiously, waited By late 1984, its patience was
exhausted, and in October, it decided not to let Respond-
ent's conduct continue to be both unremedied and un-
publicized. i On 26 October, it commenced informational
picketing at Respondent's three Virginia locations at
Main Street in Troutville, and Williamson Road and
Grandin Road in Roanoke 2 Its signs read- "Thriftway
has committed unfair labor practices. Please don't shop
It also distributed leaflets which stated
THRIFTWAY
UNFAIR
MEMBERS OF UNITED FOOD AND COMMERCIAL
WORKERS LOCAL 278 ASK THAT YOU NOT SHOP AT
THRIFTWAY FOUR YEARS AGO THRIFTWAY'S EM-
PLOYEES TRIED TO ORGANIZE A UNION TO IMPROVE
THEIR WAGES AND WORKING CONDITIONS.
THRIFTWAY RESPONDED BY FIRING SOME WORKERS
WHO TRIED TO ORGANIZE AND COMMITTED OVER 25
OTHER SEPARATE VIOLATIONS OF THE FEDERAL
LABOR LAW A JUDGE OF THE NATIONAL LABOR RE-
LATIONS BOARD ORDERED THRIFTWAY TO PUT THE
EMPLOYEES IT HAD FIRED BACK TO WORK AND TO
BARGAIN WITH THE UNION THREE YEARS LATER,
NOTHING HAS HAPPENED
1 On 16 October 1985, the Board affirmed almost all of the findings
and conclusions of Judge Wolfe 276 NLRB 1450
2 Jurisdiction of the Board is not contested I find, as Respondent
admits, that Granco is a Virginia corporation engaged in the sale of gro-
ceries at retail at its Thriftway Supermarket store located at 139 Grandin
Road, Southwest, Roanoke, Virginia, Blantom is a Virginia corporation
engaged in the sale of groceries at retail at its Thriftway Supermarket
store located at 7511 Williamson Road, Northwest, Roanoke, Virginia,
and Painter, Jr operates a sole proprietorship engaged in the sale of gro-
ceries at retail at 'his Thriftway Supermarket store located on Main
Street, Troutville, Virginia At all times material herein, Granco, Blan-
tom, and Painter, Jr (collectively Respondent) have been affiliated busi-
ness enterprises, with common management and supervision , have pro-
vided services for each other, have interchanged personnel with each
other, have held themselves out to the public as a single-integrated busi-
ness enterprise, have formulated and administered a common labor rela-
tions policy affecting employees of said operations, and constitute a
single - integrated business enterprises and a single employer within the
meaning of the Act During the 12 months preceding the issuance of the
complaint, a representative period , Respondent had gross retail sales in
excess of $500,000 and during the same period purchased and received
goods valued in excess of $50,000 directly from suppliers located outside
the State of Virginia I conclude , as Respondent admits, that Respondent
is now, and has been at all times material herein, an employer engaged in
commerce within the meaning of Sec 2(2), (6), and (7) of the Act I also
conclude, as Respondent admits, that the Union is now, and has been at
all times material herein, a labor organization within the meaning of Sec
2(5) of the Act
176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE ARE ASKING THAT YOU SEND A MESSAGE TO
THE OWNERS OF THRIFTWAY THAT THE GOOD CITI-
ZENS OF THIS AREA SUPPORT THE RIGHTS OF EM-
PLOYEES TO EXERCISE THEIR FREEDOM UNDER THE
LAW YOU CAN SEND THAT MESSAGE BY SHOPPING
AT GOOD UNION STORES WHERE YOU KNOW YOUR
FRIENDS AND NEIGHBORS HAVE EMPLOYEES WHO
RESPECT THE LAW AND RESPECT THE DIGNITY OF
THE PEOPLE WHO WORK FOR THEMt
PLEASE
DON'T SHOP
What gives rise to this proceeding is Respondent's al-
leged interference with the Union 's picketing and leaflet-
ting at Respondent 's Williamson Road Thriftway Super-
market (Supermarket) by, among other things, prevent-
ing the Union from picketing on Respondent 's premises,
forcing the Union pickets away from the Supermarket,
assaulting a picket , and filing criminal charges against
two pickets , all allegedly in violation of Section 8(a)(1)
of the Act.3
The Supermarket is leased by Respondent and occu-
pies a 110-foot wide building fronted by approximately
75-100 feet of parking space and throughways , with ad-
ditional parking space on each side The two main en-
trances in the front of the property are located on State
Route 11, a two-lane highway 4 At the points of entry
off of Route 11, between the two entrances , is a state-
owned grassed island, 90 feet wide and 15 feet deep.
There is no sidewalk adjacent to Route 11 The principal
entrance to the Supermarket (as one faces the building) is
on the left-hand side ; on the far right-hand side is an
unused, former United States post office. To the right
hand of the Supermarket 's entrance are five supporting
columns, spaced 15 feet apart and located about 10 feet
in front of the building wall, in front of which is a side-
walk and in front of that is a 5-foot wide fire lane
When the Union commenced picketing and handbilling
on 26 October , its four pickets positioned themselves-
one on the island, one in the left-hand parking lot, and
two just outside the fire lane walking from an area near
the post office to a point near the main entrance Typi-
cally, after a customer parked, a picket gave the custom-
er a leaflet in the parking lot or as the customer was
walking to the entrance Shortly after the picketing
began, Alex Zimmerman , the store manager , told Rich-
ard Adams , then the Union 's organizing director, that
the pickets had to leave the property Adams replied that
under Federal law they had the right to be there, and
Zimmerman threatened to call the police and have the
pickets removed if they did not leave at that time
Adams said that Zimmerman would have to do what he
3 The relevant docket entries are as follows The unfair labor practice
charge in Case 5-CA-16765 was filed by the Union on 26 October 1984
and a complaint issued thereon on 7 December 1984, the charge in that
proceeding was subsequently amended on 10 and 24 December 1984, the
charge in Case 5 -CA-17018 was filed by the Union on 11 February 1985,
an order consolidating cases and an amended and consolidated complaint
issued on 27 March 1985 , and a hearing was held on 23 May and 10 June
1985 in Roanoke , Virginia
4 There are also one or two turning lanes where Respondent's property
is located '
had to do, but the Union had to do what it had to do
The picketing continued , Adams alone distributed about
100 handbills that morning
About 3 . 30 p m, police officers arrived , entered the
store, and came out of the store with Zimmerman and
Bland A Painter III (Painter ), the president of Granco,
Inc: and an officer of Blantom Corporation A police of-
ficer told Adams that the pickets would have to leave
the parking lot; if not, they would be arrested for tres-
passing Adams protested that the pickets were privi-
leged by Federal law to remain there, but , upon the offi-
cer's direction to move, the pickets moved to the island
where they remained for the rest of the day and the fol-
lowing day , Saturday , 27 October
On Monday , 29 October , two pickets moved back to
the property because, Adams explained , there was no
way to distribute handbills if they remained on the
island. Two other pickets remained on the island- they
wore signs but did not carry handbills That afternoon,
Zimmerman took photographs of the picketers and
called Adams "fat boy," "son of a bitch ," and "Mafia "
He threatened the pickets , stating "We 've got the
heavyweights too We can bring them out if that's what
you all want . . . . All of you son -of-a-bitches are going
to jail " At about 2 : 15 p m , a police officer arrived, went
into the market , and exited with Zimmerman , Painter,
and Painter , Jr The officer told Adams that the pickets
were obstructing the Supermarket 's business and that the
Supermarket ' s owners were giving the pickets a designat-
ed area, which either he or Zimmerman marked in chalk,
in which to stand Adams described the area as a five
foot square, on the right side of the Supermarket adjoin-
ing the post office, as far away from the entrance to the
Supermarket as was possible and still be on the front side
of the buildings The pickets were advised that a custom-
er would have to ask for handbills in that designated area
and that the pickets could not pass out handbills to cus-
tomers who were in their cars and could not go onto the
parking lot The officer stated that , if they left the desig-
nated area or were found outside that area, they would
be arrested for trespassing and would go to jail 6
The pickets moved back to the island and picketed
only in that location from late on 29 October until 22
December They distributed their handbills only when a
customer parked his car in the lot, returned to the island,
and asked a picket for one, a very rare occurrence In
December , Adams was advised by the Union ' s counsel
that "things had been straightened out" and that the
pickets should return to picketing on the premises On 22
December , pickets resumed picketing on the Supermar-
ket's premises There followed on that day intense har-
assment of Adams . Painter took movies of him (even
while Adams left the Supermarket to make a telephone
5 I believe that the area was probably larger than a 5-foot square but
not as large as Painter testified Adams recalled the area as going from
the end of the post office to the first column to the left of that , a length
of approximately 15 feet I find that more accurate
6 According to Adams, the threat applied even if the pickets were to
return to the island The Union's present organizing director James
Hepner , however , testified only that , when the officer was asked whether
the Union had the option of returning to the island , the officer stated that
he did not wish to discuss it
THRIFTWAY SUPERMARKET
call), blocked his path, followed him closely, sometimes
brushed Adams with his body and movie camera, tripped
him, pulled down his eyeglasses, and made rude and
often threatening remarks ("What are you doing, fat
boy9" "You are going to get in trouble, fat boy " "You
had better not give out any more of them damn hand-
bills." When Painter pulled down Adams' eyeglasses and
Adams protested, Painter asked Adams what he was
going to do about it), and ripped a corner of Adams'
picket sign and then pulled it off Adams' neck, adding-
"You are going down, fat boy, [y]ou are going down this
time "
On 24 December 1984, based on Painter's sworn'state-
ments, warrants of arrest were issued by the General
District Court, Roanoke County, against pickets Donald
Bittner and Tommy David, charging that each on that
day "did unlawfully in violation of Section 40 1-53,
Code of Virginia obstruct or interfere with free ingress
or egress to and from the premises of Thriftway Super-
market, Williamson Rd, Roanoke, Va "7 Since 24 De-
cember, the Union has not picketed on the premises of
the Supermarket. After a hearing on 25 February 1985,
Bittner was found not guilty and the charge was dis-
missed; but David was fined and ordered jailed for 10
days, the court finding "hearing enough evidence to con-
vict court takes under advisement [defendant] not to go
upon Thriftway property-if no further problem in-
volves this [defendant] case will be dismissed on
8/22/85 "8
The couit's order was based, in part, upon evidence of
a Thriftway customer that the picketers had blocked his
way into the store The customer did not testify in this
proceeding, and the two employees denied that they had
done anything wrong. Indeed, they testified that, al-
though they were standing about a foot or two outside
the fire lane, in an area where cars normally pass, the
customer intentionally drove his vehicle dangerously
close to them; that the customer had ample room to
drive through the property without getting close to
7 Sec 40 1-53 reads, as follows
Sec 40 1-53 Preventing persons from pursuing lawful vocations,
etc , illegal picketing, injunction -No person shall singly or in con-
cert with others interfere with another in the exercise of his right to
work or to enter upon the performance of any lawful vocation by
the use of force, threats of violence or intimidation, or by the use of
insulting or threatening language directed toward such person, to
induce or attempt to induce him to quit his employment or refrain
from seeking employment
No person shall engage in picketing by force or violence, or picket
alone or in concert with others in such manner as to obstruct or
interfere with free ingress or egress to and from any premises, or ob-
struct or interfere with free use of public streets, sidewalks or other
public ways
Any person violating any of the provisions of this section shall be
guilty of a misdemeanor, and punished accordingly
Notwithstanding the punishments herein provided any court of
general equity jurisdiction may enjoin picketing prohibited by this
section, and in addition thereto, may enjoin any picketing or interfer-
ence with lawful picketing when necessary to prevent disorder, re-
strain coercion, protect life or property, or promote the general wel-
fare (Code 1950 (Rep] Vol 1953), Sec 40-64, 1952, c 674, 1970, c
321, 1974, c 254 )
All parties agree that, although no finding of guilt was made by the
court, the effect of the court's taking the matter "under advisement" con-
stituted such a finding, but suspended imposition of the sentence
177
them, and that they did not block the customer's path in
any manner.
Respondent does not contest the legitimacy of the
Union's protest, which was aimed at publicizing Re-
spondent's alleged unfair labor practices,9 at least as
found by Judge Wolfe; and the Union's action, as the pu-
tative bargaining representative of Respondent's employ-
ees, is clearly protected under Section 7 of the Act
Mastro Plastics Corp v. NLRB, 350 U.S. 270, 278
(1956) 10 What is at issue is where the Union may legally
publicize its dispute. As the Board stated in Giant Food
Markets, 241 NLRB 721, 728 (1979), remanded 633 F.2d
18 (6th Cir 1980).
. . [t]he protected nature of a general form of
picketing does not necessarily clothe the pickets
with a right to infringe upon the private property
rights of others In Hudgens v. N.L.R B,6 the Su-
preme Court held that any rights which pickets
might be afforded to engage in such activity on pri-
vate property do not emanate from the first amend-
ment of the Constitution, but rather have as their
source the National Labor Relations Act It further
counseled that the Board, in determining the extent
of such rights, should accommodate the Section 7
rights and private property rights "with as little de-
struction of one as is consistent with the mainte-
nance of the other "7 This approach was prescribed
by the Court in Babcock & Wilcox, supra, and Cen-
tral Hardware Company v. N.L.R B ,8 both dealing
with union organizing by nonemployees on private
property, and was also applied to the primary pick-
eting in support of an economic strike involved in
Hudgens Although the picketing here is dissimilar
in purpose to either the organizational activity in-
volved in Babcock, or the primary economic picket-
ing by the employer's employees in Hudgens, the
Board's role is the same-to accommodate the Sec-
tion 7 rights of the pickets with the private proper-
ty rights of the Employer.9 However, as the Court
pointed out in Hudgens, the "locus" of the accom-
modation 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 con-
text "
6 424 U S 507 (1976)
7 Citing N L R B v Babcock & Wilcox Company, 351 U S 105,
112 (1965)
8 407 U S 539 (1972)
9 In Milk Wagon Drivers Union v Meadowmoor Dairies, 312 U S 287,
293, the Supreme Court observed "Peaceful picketing is the working-
man's means of communication "
10 Picketing to protest unfair labor practices is not proscribed recogm-
tional or organizational picketing See, for example, Mission Valley Inn,
140 NLRB 433 (1963) In Seattle-First National Bank, 243 NLRB 898
(1979), remanded in part 651 F 2d 1272 (9th Cir 1980), on remand 258
NLRB 1222 (1981), the Board sustained picketing on private property in
support of an economic strike The Board's recent decision, 276 NLRB
1450 (1985), adopted the judge's recommendation that a bargaining order
issue
178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
s See Sears Roebuck & Co v San Diego County District Council
o f Carpenters, 436 U S 180 (1978)
In Giant Food, the Board found it necessary, in order to
determine where the protected activity might take place,
to analyze and weigh the following. (1) for whose bene-
fit the picketing and leafletting is intended, (2) the in-
tended audience of the pickets; (3) the likelihood of a
union's picketing enmeshing neutral employers in its dis-
pute with a particular store in a shopping center, and (4)
the openness of the property to the public
In Giant Food, the union was engaged in area stand-
ards picketing which, the Board stated, was arguably not
for the benefit of the employer's employees, but for the
benefit and protection of complete strangers to this em-
ployment relationship. But it also stated that "area stand-
ards picketing is a protected Section 7 right and is for
the protection of `employees' represented by the union."
241 NLRB at 728 It found that the employees whom the
picketing was intended to benefit were not as important
as the "fact that the employer being picketed is the em-
ployer with whom the union has the dispute " Id
There can be no question that, here, Respondent is the
employer with whom the Union has a dispute Respond-
ent has now been found by the Board to have committed
unfair labor practices of such import that it adopted the
administrative law judge's recommendation of a bargain-
ing order. If the Union's picketing and handbilling had
been successful, Respondent might have agreed to the
terms of the recommended order which inured to the
benefit of Respondent's employees In any event, this
being a primary dispute involving the alleged commis-
sion of unfair labor practices, Respondent's store is
"where the [U]nion can reasonably expect its picketing
and handbilling to have the most impact." Id.
The audience which the pickets and handbillers intend-
ed to reach with their message "consists of the potential
customers of [Thriftway] who become readily identifia-
ble only when they decide to enter the store " Id. Giant
Food involved a shopping center, and the Board's finding
was bolstered by the fact that customers of other stores
in the center might become customers of the supermar-
ket only on impulse when they see an advertisement in
the window Here, Thriftway was the sole store on the
property, but the rationale of Giant Food is equally appli-
cable
The Board there noted that Babcock & Wilcox and
other cases involved organizational solicitation, where
the audience-the employees to be organized-was spe-
cific and the use of mail, telephone, and personal contact
might afford a reasonable alternative access to that audi-
ence, rather than permitting direct entry onto an employ-
er's property. But, in Giant Food, 241 NLRB at 729, the
Board found that.
. . where, as here, the intended audience is not
readily identifiable until the audience attempts to
enter the store, such other means of communication
cannot be considered "reasonable" in relation to
their possible effectiveness [Footnote omitted ]
Adams testified that the cost of television, radio, and
newspaper advertisements was prohibitive, television ad-
vertisements alone costing $1500 per minute Besides, the
intent of the leafletting was not to "reach the whole Ro-
anoke Valley," but the people who shopped at
Thriftway 11 The intent was also to have direct contact
with the consumers As the Sixth Circuit found in Giant
Food, 633 F.2d at 24-25, the
. . . pickets must be allowed a reasonable means
of communicating with consumers. When the con-
sumers potentially come from a large metropolitan
area and cannot be categorized as a specific group
patronizing a specific type of store, expensive, ex-
tensive mass media or mailer campaigns should not
be required If reasonableness is a criterion for de-
termining whether or not an alternative means of
communication exists, the union should not be
forced to incur exorbitant or even heavy expenses
A mass media campaign would also diffuse the ef-
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
That personal contact is not insignificant. The Supreme
Court recognized in Hughes v Superior Court, 339 U S.
460, 465 (1950), that
Publication in a newspaper, or by distribution of
circulars, may convey the same information or
make the same charge as do those patrolling a
picket line But the very purpose of the picket line
is to exert influences, and it produces consequences,
different from other modes of communication The
loyalties and responses worked and exacted by
picket lines are unlike those flowing from appeals
by printed word
Respondent gave the union pickets and handbillers
two options to remain in a small area far removed from
the main entrance to the store or to vacate themselves
from any part of Respondent's premises Neither, I find,
were viable alternatives. Although it may be argued that
the picket signs gave the customers some insight of what
the Union was complaining about and what it wanted
the customers to do, it was the handbill which more
fully set forth the Union's position, including its advice
that an administrative law judge had found Respondent
in violation of the Act and had ordered it to correct its
violation and that Respondent had done nothing for 4
years By permitting the Union access to only the small
area, Respondent sought to limit the visibility of the
picket signs, prohibit the distribution of leaflets except to
only those few who passed by that area, and inhibit the
discussion by the pickets with the customers of the
nature of the dispute. 12 The alternative of the pickets'
11 The Roanoke Standard Metropolitan Statistical Area, which in-
cludes Roanoke City, Roanoke County, Salem City, Botetourt County,
and Craig County, had a population of 224,548 as of 1 January 1980
12 Most of the Supermarket's customers parked in the area nearest the
entrance doors and away from the area designated by Respondent for the
Union to picket
THRIFTWAY SUPERMARKET 179
standing only on state property, some 75-100 feet re-
moved from the Supermarket's doors, would similarly
dilute the Union's capacity to spread its message. As
found by the Board in Giant Food, "motorists entering
the parking lot from the adjoining public road would be
more concerned with safely making their entrance than
with reading a picket sign or attempting to receive a
handbill at the roadside." 241 NLRB at 729. Indeed,
Adams testified that the Union gave up any attempt to
distribute the handbills because it was unfruitful 18 When
the Union patrolled the front of the store and pickets
handed out leaflets in the parking lots, Adams alone dis-
tributed 100 handbills in a morning.
Turning to the two other factors relied on by the
Board in Giant Food, I find that, because there are no
other employers on the Store's property, there are no
other employers who could be enmeshed in the Union's
picketing and leafletting. In addition, there is no question
that Respondent's property is held open to the public,
and that the public is invited onto the property. Re-
spondent has permitted others to use the same areas
where it does not want pickets. Thus, it has had a trailer
selling hotdogs and sodas about 5 to 6 times a year and
has also permitted bake sales to be conducted in front of
the Supermarket 14 As in Giant Food. "Surely, in the ab-
sence of picket signs and handbills, these same individ-
uals would be welcome on the site during business hours
as potential customers " Id. Unlike Giant Food, however,
where there was "no evidence of violence or of interfer-
ence with ingress or egress," id., here, the General Dis-
trict Court found "enough evidence to convict" David
of a violation of Virginia law However, in that court, no
transcript is made of a hearing nor is a hearing record-
ed.15 In this circumstance, it is impossible to ascertain
the basis of the court's disposition which does not, in any
event, appear to constitute a final judgment and would
not be entitled to the effect of res judicata See, general-
ly, 1 B Moore, Federal Practice, Par 0.409.16 Based on the
evidence in this proceeding alone, there is little, if any,
basis to find any interference with egress or ingress. At
best, although the pickets may have stood slightly out-
side the fire lane, there was ample room for cars to pass
and no blocking of ingress or egress. Indeed, based on
the testimony of David and Bittner, the driver of the
automobile deliberately drove close to both pickets
In sum, balancing the foregoing factors weighing in
favor of the right to picket in front of the Supermarket
against the reasons for prohibiting such picketing, pursu-
ant to the Babcock & Wilcox criteria, I conclude that
Respondent's property rights must yield to the pickets'
Section 7 rights
11 Adams stated that the entrance is a very congested area as is the
surrounding area, which is primarily commercial Handbilling would
have backed up traffic on the main road and might have caused an acci-
dent
14 Painter testified that the hotdog sales are "promotional" and thus
benefit the store Painter did not comment on the bake sales
1s If a party wishes to appeal, he is granted a trial de novo
16 It may well be that David has complied with the direction of the
court and remained away from the Supermarket, as he had up to the time
of the hearing in this proceeding If so, pursuant to the court's disposi-
tion, the criminal case may have been dismissed on 22 August 1985
I find it without doubt that Respondent interfered with
those rights by physically blocking Adams, assaulting
and tripping him and pulling and tearing his picket sign,
and by confining the picketing to a specified area or al-
ternatively demanding that the pickets leave the prem-
ises . I also find that Respondent's threats to call the
police and threats of arrest and the subsequent institution
of criminal proceedings against Brttner violated Section
8(a)(1) of the Act See, e.g., Villa Avila, 253 NLRB 76
(1981), enfd 673 F 2d 281 (9th Cir 1982); Montgomery
Ward Co., 263 NLRB 233 (1983), modified 728 F 2d 389
(6th Cir. 1984). The activities of Respondent, as set forth
above, occurring in connection with the operations of
Respondent described in footnote 2 above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof. For the reasons set forth below,
however, I find no violation regarding the institution of
criminal proceedings against David and will dismiss that
allegation of the complaint
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act, I shall recommend that it cease and desist there-
from and take certain affirmative action designed to ef-
fectuate the policies of the Act. Both General Counsel
and the Charging Party also seek an order requiring Re-
spondent to "[m]ove to withdraw the criminal action ini-
tiated . against picketer Tommy Lewis David for his
activity in handbilling and picketing at the [Supermarket]
on 24 December 1984."17 I will not recommend the re-
quested relief It is true that similar relief has been grant-
ed by the Board in the past Baptist Memorial Hospital,
229 NLRB 45, 46 (1977), Medical Center Hospitals, 244
NLRB 742, 745 (1979), Clark Manor Nursing Home
Corp., 254 NLRB 455, 479 (1981), modified 671 F 2d 657
(1st Cir 1982) It is also true that the Board has the
power under Section 8(b)(1)(A) of the Act to limit pick-
eting so as to ensure ingress and egress from property
and that Respondent invoked the Board's jurisdiction by
filing an unfair labor practice charge (Case 5-CB-4944)
which sought that very relief 18 However, Respondent
also filed the criminal charge, and the court rejected the
Union's preemption argument" and found enough evi-
dence to convict Although I have earlier refused, for
the purposes of my findings of violations of the Act
herein, to be bound by the conclusion of the same court,
I similarly reject the notion that I should not take into
account the fact that the court heard sufficient evidence
that warranted it to find a violation
In Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S.
731 (1983), the Supreme Court held that a civil lawsuit
14 If the criminal case has been dismissed, see fn 16 above, this request
may be moot
ie The charge was dismissed by the Regional Director on 9 April
1985, and Respondent's appeal to the Office of Appeals was denied on 8
May 1985
19 The Board did not intervene in the criminal proceeding brought
against either David or Bittner
180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
brought to retaliate against the exercise of Section 7
rights may not be enjoined unless it lacks a reasonable
basis in fact or law There, the Court (at 741) "recog-
nized that the right of access to the courts is an aspect of
the First Amendment right to petition the Government
for redress of grievances" and the Court "construed the
Act as not pre-empting the States from providing a civil
remedy for conduct touching interests `deeply rooted in
local feeling and responsibility.' San Diego Building
Trades Council v. Garmon, 359 U S 236, 244, 79 S Ct
773, 3 L Ed 2d 775 (1959) "
Respondent did not pursue a civil remedy here and did
not complain of"civil or criminal trespass 20 Rather, Re-
spondent complained that the pickets blocked ingress and
egress to the Supermarket, which state courts have indi-
cated may be enjoined in the exercise of their police
powers and have not found to be preempted by the Act
For example, see People v. Bush, 39 N.Y. 2d 529 (1976),
and particularly the dissent, which agreed that a charge
of disorderly conduct for blocking ingress and egress
was not preempted. If a picket engages in violence, it
cannot be cogently argued that the sole remedy is vested
in the Board and that a criminal court is without power
to punish the wrongdoer. So, too, the punishment of a
picket who interferes with ingress and egress in violation
of a state criminal statute is not preempted by the Act
Finally, even if Bill Johnson's Restaurants applied to the
criminal complaint against David, the court found suffi-
cient basis in fact and law to sustain the criminal com-
plaint.21
Even though I will not recommend that all the relief
requested by General Counsel and the Union be granted,
the relief which I will recommend should ensure to the
Union its right to picket on the Supermarket's property
without the fear that pickets will be arrested for trespass,
unless they engage in conduct which the State has other-
wise prohibited in its criminal laws and pursuant to its
inherent police powers
On these findings of fact and conclusions of law and
on the entire record herein'22 including my consideration
of the briefs filed by General Counsel, Respondent, and
the Union, and my observation of the demeanor of the
witnesses as they testified, I issue the following recom-
mended23
ORDER
Respondent Granco, Inc , d/b/a Thriftway Supermar-
ket, Blantom Corporation, d/b/a Thriftway Supermar-
20 Because trespass was never complained of, almost all the authorities
relied on by General Counsel and the Charging Party are inapposite
21 From the evidence presented in this proceeding, I find that Bittner
was not in a location where he might have interfered with egress and
ingress His criminal case was dismissed There is some indication that
David, however, was in the area of the front door of the Supermarket,
although, on the basis solely of the instant record, David was not affirma-
tively shown to have interfered with anybody
22 General Counsel moved in its brief to amend the official transcript
in one respect There being no opposition, the motion is granted and the
transcript is amended accordingly
23 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
ket, and Bland A. Painter , Jr. d/b/a Thrtftway Super-
market , a single employer , its officers , agents, successors,
and assigns, shall
1 Cease and desist from
(a) Demanding that representatives of United Food
and Commercial Workers Union , Local 278, UFCW
International Union, AFL-CIO, CLC, who are engaged
in peaceful , protected handbilling and picketing, leave
the area outside its store located at 7511 Williamson
Road, Roanoke, Virginia
(b) Threatening union representatives with arrest for
failing to accede to demands that they leave the area out-
side the said store
(c) Demanding or causing the local police authorities
to demand that union representatives confine the situs of
their handbilling and picketing outside the said store to
an area from which access to the store 's customers is in-
effectual
(d) Threatening or causing local police authorities to
threaten union representatives with arrest for failure to
comply with demands that they confine the situs of their
picketing and handbillmg outside the said store to an
area from which access to customers would be ineffectu-
al
(e) Interfering with peaceful, protected handbilling and
picketing by physically blocking the path of union repre-
sentatives engaged in such activity through any means
including, but not limited to, tripping, touching, or
bumping
(f) Interfering with peaceful, protected handbilling and
picketing by union representatives by confiscating or rip-
ping picket signs.
(g) Causing criminal summons to issue against union
representatives engaged in peaceful protected handbilling
and picketing outside of the said store so long as said
union representatives may not reasonably be found to
have blocked egress or ingress to the store
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Afford union representatives with access to the
outside of the said store for the purpose of engaging in
peaceful, protected handbilling and picketing, publicizing
the finding of unfair labor practices, so long as that ac-
tivity is conducted by a reasonable number of persons
(b) Post at its stores located at 7511 Williamson Road
and Grandin Road in Roanoke, Virginia, and Route 11,
Troutville, Virginia, copies of the attached notice
marked "Appendix "24 Copies of said notice, on forms
provided by the Regional Director of Region 5, after
being signed by Respondent's authorized representative,
shall be posted by Respondent immediately on receipt
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
24 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 "
THRIFTWAY SUPERMARKET
are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that said notices are not altered,
defaced or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order, what steps Respondent
has taken to comply.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act other
than those found herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT demand that representatives of United
Food and Commercial Workers Union, Local 278,
UFCW International Union, AFL-CIO, CLC, who are
engaged in peaceful, protected handbilling and picketing,
leave the area outside our store located at 7511 William-
son Road, Roanoke, Virginia.
WE WILL NOT threaten union representatives with
arrest for failing to accede to demands that they leave
the area outside our store.
WE WILL NOT demand or cause the local police au-
thorities to demand that union representatives confine
the situs of their handbilling and picketing outside our
store to an area from which access to our customers is
ineffectual.
WE WILL NOT threaten or cause local police authori-
ties to threaten union representatives with arrest for fail-
181
ure to comply with demands that they confine the situs
of their picketing and handbilling outside our store to an
area from which access to our customers would be inef-
fectual.
WE WILL NOT interfere with peaceful, protected hand-
billing and picketing by physically blocking the path of
union representatives engaged in such activity through
any means including, but not limited to, tripping, touch-
ing, or bumping.
WE WILL NOT interfere with peaceful, protected hand-
billing and picketing by union representatives by confis-
cating or ripping picket signs.
WE WILL NOT cause criminal summons to issue against
union representatives engaged in peaceful protected
handbilling and picketing outside of our store so long as
said union representatives may not reasonably be found
to have blocked egress or ingress to our store
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
rights guaranteed in Section 7 of the National Labor Re-
lations Act.
WE WILL afford union representatives with access to
the outside of our store for the purpose of engaging in
peaceful, protected handbilling and picketing, publicizing
the finding of unfair labor practices, so long as that ac-
tivity is conducted by a reasonable number of persons.
GRANCO, INC., D/B/A THRIFTWAY SUPER-
MARKET: BLANTOM CORPORATION, D/B/A
THRIFTWAY SUPERMARKET; AND BLAND
A. PAINTER , JR., D/B/A THRIFTWAY SU-
PERMARKET , A SINGLE EMPLOYER