United Supermarkets, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1987

283 N.L.R.B. 814 (N.L.R.B. 1987)

814 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
United Supermarkets , Inc. and Retail Clerks Union,
Local No. 368, AFL-CIO, Chartered by United
Food & Commercial Workers International
Union,, ,AFL-CIO. Cases 16-CA-8650 and 16-
CA-8759
30 April 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 18 September 1980 Administrative Law
Judge David G. Heilbrun issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the Union filed an answering
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions as modified and to adopt the recom-
mended Order as modified.
The parties stipulated to the basic facts constitut-
ing the alleged unfair labor practices, and the facts
in general are largely undisputed. The Respondent
operates seven supermarkets in the Amarillo, Texas
area, including one located in a small shopping
center at the intersection of Martin Road and Ama-
rillo Boulevard. The supermarket is situated at the
south end of a row of eight stores in the shopping
center that are set back about 120 feet from Martin
Road. The shopping center's parking lot occupies
most of the area between the row of stores and
Martin Road.
About 3 p.m. on 10 August 1979, two employees
who had been discharged by the Respondent, Pri-
cella Sain and Mary Jane Price, began picketing on
the sidewalk in front of the entrance to the super-
market under the supervision of Union Representa-
tives Dennis Patterson and Jim Shelton. Sain and
Price walked back and forth wearing picket signs
that bore the message: "United Supermarkets
Unfair to Retail Clerks Union Local 368 Dallas,
Texas." Sain and Price attempted to talk to cus-
tomers approaching the supermarket about the pro-
ceedings then pending against the Respondent.
In 1977, two representation elections had been
held among the Respondent's Amarillo area em-
' 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.
ployees. A majority of the employees in the meat
department unit had voted in favor of the Union
while a majority in the grocery unit had voted
against the Union. Additionally, unfair labor prac-
tice charges had been filed against the Respondent
alleging that the Respondent had unlawfully dis-
charged 13 employees, including Sain and Price,
and had unlawfully refused to bargain with the
Union. As of the date of the picketing, the unfair
labor practice cases and objections to the elections
had been consolidated before an administrative law
judge.2
Sain and Price told approaching customers about
the unfair labor practice complaint pending against
the Respondent, stated that they wanted the Re-
spondent to settle the matters, and asked the cus-
tomers to shop at other supermarkets until the mat-
ters were settled. They also stated that the wages
and benefits paid by the Respondent were inferior
to those provided by union supermarkets. Sain and
Price did not distribute handbills.
After a short period of time, officials of the- Re-
spondent emerged from the supermarket and told
Sain and Price, as well as Patterson and Shelton, to
move out near the street or into the parking lot, or
the police would be called. The four- declined to
move away from the front of the supermarket, so
Max Smithey, the Respondent's Amarillo grocery
supervisor, summoned the police. After conferring
with Smithey, a police officer asked Sain, Price,
Patterson, and Shelton to leave the property and
go at least to the `city's right of way along the
street. They refused to do so and, at 4:30 p.m.,
were arrested for criminal trespass, with Smithey
pressing charges.
The judge found that by threatening to cause the
arrest, and by causing the arrest, of the Union's
pickets and representatives while they were en-
gaged in activity protected by Section 7 of the
Act, the Respondent violated Section 8(a)(1) of the
Act." We affirm the judge's finding of 8(a)(1) vio-
lations, but do so only on the basis of the analysis
set forth in our recent decision in Fairmont Hotel,
282 NLRB 139 (1986).
In Fairmont, the Board reviewed NLRB v. Bab-
cock & Wilcox Co., 351 U.S. 105 (1956), and its
progeny, and determined that in cases involving
conflicts between Section 7 rights and property
rights, the Board's task is "first to weigh the rela-
tive strength of each party' s claim." The Board
found:
2 These matters ultimately were decided in United Supermarkets, 261
NLRB 1291 (1982) In deciding this case, we take official notice of that
decision.
2 The judge also dismissed two other alleged violations of Sec 8(a)(1)
unrelated to the picketing. No party has excepted to those dismissals.
283 NLRB No. 130
UNITED SUPERMARKETS
If the property owner's claim is a strong one,
while the Section 7 right at issue is clearly a
less compelling one, the property right will
prevail. If the property claim is a tenuous one,
and the Section 7 right is clearly more compel-
ling, then the Section 7 right will prevail. Only
in those cases where the respective claims are
relatively equal in strength will effective alter-
native means of communication become deter-
minative.
Fairmont Hotel, supra at 142 (fn. omitted). Factors
that may affect the relative strength or weakness of
an asserted, property right include the following:
the use to which the property in question is put,
any restrictions placed on public access to the
property or to the facility located on the property,
and the size and location of the private facility. By
way of example, the Board noted that "a single
store surrounded by its own parking lot provided
exclusively for the convenience of customers will
have a significantly more compelling property
right claim" than "the owner of a large shopping
mall who allows the general public to utilize his
property without substantial limitation." Id. at 142.
Concerning the Section 7 right, factors that may
affect the relative strength or weakness of such a
right include the following: the. nature of the right
asserted, the purpose for which it is being asserted,
the employer that is the ' target of the activity, the
situs or the activity, the relationship of the situs to
the target, the intended audience of the activity,
and, possibly, the manner in which the right is
being asserted. Id. at 142. By way of example, the
Board noted that "organizational rights and the
right to engage in primary economic activity at the
situs of a dispute may be viewed as more compel-
ling than handbilling and other informational activ-
ity at locations other than the primary situs." Id. at
142. 1
Applying the Fairmont analysis to the facts of
this case, we find that the Section 7 rights are more
compelling than the Respondent's property rights.
The Respondent's supermarket is in 'a small shop-
ping center which the general public is invited to
patronize. A customer parking lot is provided di-
rectly in front of the supermarket and other stores,
and there are several entrances to the parking lot
to provide ready access from, the adjacent public
streets, There are no restrictions on access through
these entrances. Furthermore, the Respondent's su-
permarket shares the parking lot with the seven
other stores in the, shopping center, and the side-
walk in front of the, supermarket ' continues along
the' entire row of stores. Thus, Max Smithey testi-
fied that motorists coming to the shopping center
may park in front of the supermarket, and not enter
815
the supermarket, but, rather, go to some other
store. Additionally, customers of the other mer-
chants in the shopping center walk on the sidewalk
in front of the supermarket on their way to and
from the other nearby stores. Indeed, Max Tipton,
the Respondent's grocery supervisor for all its
stores, specifically testified to this fact. There is no
evidence that the Respondent or any other mer-
chant at the shopping center takes measures to as-
certain that everyone who uses the sidewalk in
front of, the row of stores is a customer of some
store in the shopping center. It is apparent that the
sidewalk in front of the Respondent's supermarket
is open to virtually anyone and certainly to cus-
tomers of any of the merchants at the shopping
center. Inasmuch as access to the sidewalk in front
of the Respondent's supermarket is so unrestricted
and is commonly used by persons who are not cus-
tomers, employees, or suppliers of the supermarket,
we conclude that the Respondent has retained only
a very limited property right claim to the sidewalk
in front of its supermarket.
By contrast, the Section 7 right at issue here is a
strong one. By picketing in front of the Respond-
ent's supermarket, Sain and Price, under the direc-
tion of Union Representatives Patterson and Shel-
ton, were attempting to protest the Respondent's
asserted unfair treatment of its employees that con-
stituted alleged unfair labor practices and to bring
pressure on the Respondent to end these practices,
as well as to protest Respondent's alleged payment
of wages inferior to those of unionized stores.4 The
importance of the right to protest unfair labor
practices is evidenced by the greater rights accord-'
ed employees who strike over unfair labor prac-
tices as compared to employees who strike over
economic issues . See, e.g.,- Pecheur Lozenge Co., 98
NLRB 496 (1951), enfd. as modified 209 F.2d 393
(2d Cir. 1953). Moreover, the Respondent was the
target of the picketing in question, and the situs of
the picketing was immediately in front of the one
of the Respondent's supermarkets at which some of
the alleged unfair labor practices had occurred.
4 We reject the judge's conclusion that "[p]icketing signs carried by
Price and Sam in the instant case were synonymous with those in Giant
Food Markets and thus plainly of `area standards' character." JID slip op.
at 6 (fn . omitted). As noted above, Price's and Sam's picket signs stated,
"United Supermarkets Unfair to Retail Clerks Union Local 368 Dallas,
Texas." In Giant Food Markets, 241 NLRB 727 (197), the picket signs
stated: "Informational Picketing-Giant Food Markets does not pay area
standards wages and benefits . Please don 't, shop. Retail Clerks Union
1557, 203 forth 11th Street, Nashville, Tennessee." The fact that Sain
and Price, in addition to publicizing the Respondent's alleged unfair labor
practices, also told prospective customers that the Respondent 's wages
and benefits were inferior to those at union stores, did, add an area stand-
ards element to their message. However, their voicing of this additional
concerti did not reduce the character of the, picketing, taken as a whole,
from that of unfair labor practice picketing to that of area standards pick-
eting.
816 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Additionally, the Respondent's customers were the
intended audience of the Union's picketing. Inas-
much as persons could be identified as customers of
the Respondent when they approached the en-
trance to the, Respondent's supermarket, picketing
on the sidewalk in front of the supermarket was an
appropriate means for the pickets to convey their
message to this audience. Also, the picketing activi-
ties were carried out not only by nonemployee
union representatives but also by two discharged
employees whose terminations had been alleged to
constitute unfair labor practices. Sain's discharge
was ultimately determined to be unlawful, while
Price's discharge was not. See United Supermarkets,
261 NLRB 1291 (1.982). An unlawfully discharged
employee retains her status as an employee for pur-
poses of the Act. Holly Manor Nursing Home, 23-5
NLRB 426, 428 fn. 4 -(1978). Accordingly, Sain's
right as an employee to picket in protest of the Re-
spondent's alleged unfair labor practices was per-
haps even greater than that possessed by the other
three individuals.5 Finally, contrary to the Re-
spondent's contentions, the manner in which the
picketing was carried out did nothing which might
arguably, diminish its protected character. We
agree with the judge's conclusion that the evidence
shows that the picketing was peaceful, the super-
market's entrance was not obstructed, and there
was no interference with prospective customers.
In sum, the Section 7 interest being asserted in
picketing to protest the Respondent's unfair labor,
practices was quite a strong one, while the Re-
spondent's property interest in limiting the use of
the sidewalk in front of its supermarket was rela-
tively weak. Accordingly, we, find that the Section
7 right exercised by the Union outweighs the Re-,
spondent's property right to exclude the pickets
from the sidewalk. Because the rights, asserted by
the Union and the Respondent are not relatively
equal, it is unnecessary to consider the availability
of reasonable alternative means by which the
Union could have communicated its message to its
intended -audience. For the foregoing reasons, we
agree with the judge that the Respondent violated
Section 8(a)(1) of the Act by threatening to cause
the arrest of the pickets and by -causing their
arrest.6
5 See -Hudgens v NLRB, 424 U.S. 507, 521-522 (1976). We reject the
judge's conclusion , at fn . 9, that "[t]he fact that both these individuals
[Price and Sain] were alleged discriminatees in abase awaiting decision
following trial does not appreciably change their status as nonem-
ployees," and that "for analytical purposes here they were equitable with
nonemployees
"6 Unlike his colleagues , Member Stephens does not automatically ex-
clude consideration of the factor of alternative means whenever Sec. 7
rights are more compelling than property rights or vice versa.' Fairnront
Hotel, 282 NLRB 139 (1986) (Member Stephens concurring ). Nonethe-
less, he reaches the same conclusion as they do here. Where, as here, the
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge ' as modified below and orders that the Re-
spondent, United Supermarkets, Inc., Amarillo,
Texas, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 1.
1. Cease and desist from
"(a) Threatening to cause the arrest , and causing
the arrest, of any employees or union representa-
tives while peacefully picketing the Respondent's
supermarket on Martin Road in Amarillo, Texas, in
protest of unfair labor practices allegedly commit-
ted by the Respondent.
"(b) In any like or related manner interfering
with, restraining; or coercing employees in the ex-
ercise of the rights guaranteed them- by Section 7
of the Act."
2. Substitute the attached notice for that of the
administrative law judge.
Sec. 7 rights are especially , strong and the property rights are relatively
attenuated, he would impose a much lighter "alternative means" burden
on the General Counsel than he would when the relative strengths of
Sec. 7 rights and property rights were reversed. The alternative means
suggested by the Respondent-purchasing radio, television , and newspa-
per advertisements or distributing handbills in adjacent residential areas-
are not means the employees and the Union could reasonably be required
to use as an alternative for communicating with the Respondent's cus-
tomers under the circumstances here. Therefore, Member Stephens finds
that the requirement for showing lack of alternative means is,satisfied in
this case.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT threaten to cause the arrest, or
cause the arrest, of any employees or 'union repre-
sentatives while peacefully picketing our supermar-
UNITED SUPERMARKETS 817
ket on Martin Road in protest of unfair labor prac-
tices that we have allegedly committed.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
UNITED SUPERMARKETS, INC.
Edward B. Valverde Esq., for the General Counsel.
Don Graf and William Harriger, of Lubbock, Texas, for
the Respondent.
Marvin Menaker, of Dallas, Texas, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge. This
case was heard at Amarillo, Texas, on June 24 and 25,
1980, based on a consolidated complaint alleging that
United Supermarkets, Inc. (Respondent), violated Sec-
tion 8(a)(1) of the Act by demanding that certain picket-
ing cease on the sidewalk in front of an Amarillo, Texas
area store, by causing the arrest of picketers and repre-
sentatives of Retail Clerks Union, Local No. 368, AFL-
C][O, chartered by United Food & Commercial Workers
International Union, AFL-CIO (the Union), when such
picketing continued, and by informing persons, including
one former employee, that it would not hire them be-
cause of their membership in,the Union.
On the entire record, including my observation of the
witnesses and consideration of posthearing briefs, I make
the following
FINDINGS OF FACT
After purchasing the store equipment of three Shop-
Rite/Piggly-Wiggly outlets located in Amarillo, Re-
spondent caused a hiatus in retail operation and then re-
opened these, with new employees as part of a seven-
store network in and around Amarillo, in Potter County,
Texas. The Union had formerly represented employees
of the three Piggly-Wiggly stores and is a party to pend-
ing litigation which, in part, relates to a representation
election conducted in 1977 among employees of Re-
spondent's meat department."
As of August 1979 each store was managed by a store
manager and assistant 'store manager, both of whom
were admittedly supervisors within meaning of the Act.
The positions of "third man" also existed as one of pro-
viding responsibility in greater depth, but about which
controversy exists over' whether incumbents at given
store locations are or,are not statutory supervisors. Each
store manager reports `directly to Max Smithey, Amarillo
grocery supervisor, who in turn reports to Max Tipton,
general grocery supervisor. Aside from this line of au-
thority, each meat department is run by a market manag-
er, also an admitted supervisor, and this individual re-
ports directly to Amarillo Market Manager Wendell
Robbins.
In early August 1979 a meeting of various union mem-
bers was conducted by Business Agent Dennis Patterson.
From this it ' was determined to picket Respondent be-
cause of unresolved unfair labor practice allegations and
to publicly press contention that wages and benefits for
Respondent's employees were markedly below other
unionized grocery chains.2 In consequence of this repre-
sentatives Patterson and Jimmy Shelton accompanied
Emily Ramey, Mary Jane Price, and Pricilla Sain to Re-
spondent's Martin Road store where in late afternoon of
August 10, Price and Sain donned signs and commenced
extending their message to all approaching shoppers that
were willing to listen . In the course of doing this, the
narrow sidewalk running completely in front of the
store, and from which the only entrance was available,
was patrolled by constant back and forth walking as to
best converge with shoppers coming, off the adjoining
parking lot while fulfilling Patterson's instructions not to
physically block store entry. To those who would listen,
the picketers expressly suggested that grocery shopping
be diverted to union stores. Seeing awkwardness and un-
certainty in Price's accomplishment of this,' Patterson ar-
ranged for Ramey, who was experienced in picketing
from a 1975 strike against Piggly-Wiggly, to briefly sub-
stitute and demonstrate technique before moving on to
another store location.3
Sain testified that soon -after the activity began, a
person identified as Joe Holliman, who she believed to
be a second assistant store' manager, appeared from inside
and engaged Price in conversation. Shortly after this
both Tipton and Smithey arrived at the store, and the
former addressed- Price as 1"young lady," saying she must
get off the sidewalk or face arrest. Patterson elaborated
on Respondent's reaction to this onset of picketing by
testimony in which he described his conversation with
Holliman, during which the latter became increasingly
peevish over the refusal of the union adherents to move
off the sidewalk surface and out onto the parking lot or
the public right-of-way, e'en more distant. In the course
of this, Patterson recalled Holliman's insistence that the
private property be cleared, and an added dogmatic
statement about personally seeing that 'the female picket-
ers would not continue to approach customers. Soon
Amarillo police officer Jerry- Massengi]ll appeared and
sought to mediate the confrontation with aid from a su-
perior. At this point Tipton appeared to add-heated re-
marks about how persons devoted to the Union must fall
1 In the course and conduct of retail grocery business operations at
Amarillo, Texas, Respondent annually receives gross revenue in excess of
$500,000 while purchasing and receiving goods valued in excess of
$50,000 directly from suppliers located outside the State of Texas On
these admitted facts I find that Respondent is an employer engaged in
commerce within the meaning of Sec 2(6) and (7) of the Act, and other-
wise that the Union is a labor organization within the meaning of Sec
2(5).
S All dates and named months hereafter are in 1979, unless shown oth-
erwise.
8 Initially a comprehensive schedule of picketing was envisaged by
Patterson to blanket most of Respondent's Amarillo area operations. This
was not in actuality fulfilled, yet sufficient picketing did- occur on the
original August 10 date and throughout that month,to trigger all but one
of the episodes comprising this case The Martin Road store is an integral
part of a shopping center comprising several other businesses.
818 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
back to the public domain. Utimately; arrests were made
of Price, Sain, Patterson, and Shelton, leading to pros-
ecution for criminal trespass in 'the municipal court and
ultimate acquittal.
A separate branch of the case concerns remarks about
the hiring prospects of those identified with the Union.
Sain testified that while working a part-time job at Union
Foods Distributor Company {a wholesaler totally unre-
lated to Respondent), in mid-April, she conversed with
Steve Johns about job prospects. Johns was at- that time
market manager for a Bell Street store of Respondent in
Amarillo, and was himself working a part-time second
job at United Foods. In her former employment with
Respondent, this having ended in 1977 under circum-
stances that form part of the C cases litigation mentioned
above, Sain had worked approximately 1 year for Johns
as a meatwraper. In this context, and as occurring about
mid-April, it is Sain's testimony that Johns conceded he
was just losing a meatwrapper, but in view of all the
union troubles and problems associated with Sain as "a
Union person" he could not consider her for hire back.
On a separate note, Ramey and Elizabeth Nepper testi-
fied that on August 31, after numerous days of picketing'
the South Washington Street store,' they initiated conver-
sation with Store Manager ' Barry Hawkins about wheth-
er he was curious concerning their reasons for picketing.
Ramey recalled that his answer to this was "because we
didn't hire Union people," while Nepper termed it "yes,
because we' don't hire Union people," following which
she asked, incredulously, "you mean we can't work for
you?" and heard Hawkins answer, "That's right!"
The testimony of Tipton is that after learning of mul-
tistore -picketing activities during the, afternoon of
August 10, he, persuaded pickets at a Grand Street store
to move some distance away from the customer entrance
and then traveled to the store at the-Martin Road-Ama-
rillo Boulevard intersection. His first observation there
was, one of Price (surname Walker) and Sain, who in his
view were impeding the approach of customers. Tipton
spoke with them, bluntly requesting that they move off
the sidewalk and at least- out to the parking lot. They
summoned Patterson, who engaged Tipton (now joined
by Smithey) in conversation. The two agreed to disagree
over whether Patterson's members need move off the
sidewalk, and after further scattered remarks by Re-
spondent's "representatives urging departure off the pri-
vate property, which constituted -the approximate 6-foot-
wide sidewalk,- both officials returned inside where
Smithey telephoned, police. Smithey was the individual
who formally, pressed trespass charges on which pros-
ecution of these four'persons proceeded to acquittal.
Regarding the April incident involving Sain, on which
paragraph 7(c) of the complaint is based, Johns testified
that he' was sporadically moonlighting as a meatcutter
for United Food Company during the spring of 1979.4
A Johns is now employed as a market manager in one of Respondent's
Lubbock, Texas stores. At material times he was market manager at the
Bell Street store in Amarillo, supervising five other persons of the meat
department
Johns testified that he randomly worked with Sain as
she, too, performed part-time employment there as a
meatwrapper and a secretary. He recalled a casual talk
with Sain as a person once under his supervision, but
denied discussing "anything to do with the Union,"
saying that if the subject of reemployment arose between
them he simply and solely referred her to Respondent's
main hiring office.
Hawkins testified that as manager of the South Wash-
ington Street store he would see Ramey and Nepper spo-
radically picketing his store for 6-8 hours per day when-
ever they appeared during August. He made passing re-
marks to them about weather, but denied any exchanges
about employment or the apparent object of their cause.
He expressly denied making any statement of the type at-
tributed to him on August 31.
I defer treatment of the issue that is primarily one of
law and concerns the respective rights of parties con-
cerning picketing on a private sidewalk in close proximi-
ty to the Martin Road store. Taking first the allegations
of paragraph 7(c), I conclude- it is not time-barred by
Section 10(b) of the Act. A statute of limitations -ordinar-
ily takes liberal construction, and here the charge in Case
16-CA-8759 as'filed October 12 was not originating at a
point in time exceeding fair meaning of the estimate
"middle of April." There is no ready way to particular-
ize the date of Johns' claimed remark, and I see no
reason to hypertechnically reason that a full 6-month
period appears to have preceded such filing. A second-
ary theory, that I note is that the earlier charge, filed in
August, contained a "catch-all" allegation sufficient to
embrace the April incident. Here the quirk is an apparent
merger of all aspects of that charge into the original
complaint as issued' only for Case 16-CA-8650, which is
silent regarding this allegation and therefore seemingly
breaks a link by which the requisite relatedness must be
shown.
On the merits I am first persuaded to term 'Sain as a
highly credible witness. This is so both intrinsically as
her demeanor and consistency under cross-examination
would show, and comparatively in terms of Johns'
wooden, unimpressive- testimony on key points in -which
he projected some recalcitrance to call out his true
memory and for which I discredit his flat denial of sub-
jects conversationally covered. However, that does not
end the matter. The exact words described by Sain are
not free from ambiguity in terms of -whether Johns was
enunciating a wrongful intent or commenting on- the
legal position of his employer having formally resisted
her pending claim for reinstatement.5 Johns is not shown
to have had any consistently integral role in Respond-
ent's customary hiring practices for its meat departments,
nor can it be said that while utterly unattached from ,the
course of'his regularly supervisory employment such a
chance remark should be enthusiastically attributed to
Respondent. I am- convinced that Johns' actual words
amounted to no more than comment on Respondent's
manifest resistance to Sain's resumed employment, ` as
8 Sain is specifically I of 14 alleged diserimmnatees in consolidated ,C
and R cases previously heard and now awaiting decision by a judge (Tr.
23, 193)
UNITED SUPERMARKETS
pressed in the NLRB's primary forum. Finally, Sain
could hardly be coerced more drastically than through
unlawful discharge and, should the purifying process of
law result in this conclusion, her rights will be then fully
summarized . For these reasons, I decline to characterize
the evidence pertaining to paragraph 7(c) of the com-
plaint as adequate proof of an unfair labor practice.
Regarding paragraph 7(d) of the complaint, I find the
same general pattern here as to a finding of fact. Ramey
and" Nepper were persuasively credible in demeanor,
candor, and consistency.6 Conversely, Hawkins im-
pressed me as blandly unwilling to search his memory,
and I doubt his version of limited interchange with the
picketers to the point of discrediting it. It is highly prob-
able that these picketers did, as described, tire of a seem-
ingly unproductive effort and politely tease some com-
ment from Hawkins, their most visible adversary. Yet,
here his words, when taken most favorable to the Gener-
al Counsel, are even less actionable than those treated
above. Hawkins had been impeccably free of unsolicited
comment toward Ramey and Nepper, their approach to
him on August 31 had somewhat taunting overtones, and
the faint meaning of his words by Ramey's version is
that he did no more than restate their own legal posture.
For these reasons I again decline to find, that the episode
constitutes an unfair legal practice.
In Giant Food Markets, 241 NLRB 727 (1979), and
Hutzler Bros. Co., 241 NLRB 914 (1979), the Board re-
cently found an 8(a)(1)' violation in situations practically
indistinguishable from what is represented here. Both
cases involved attempted indepth publicity by nonem-
ployees to retail customers imminently entering a shop-
ping center establishment, and threat of arrest directed to
such publicists. Relatedly, the physical configuration of
boundary streets, vehicular entryways, a large parking
surface, and targeted sidewalks having the -technical
character of private property was essentially the same.
Such a layout must tentatively be viewed as the func-
tional equivalent of a "community business block,"7 al-
though not to the extent that it must be deemed random-
ly open "to the general public."s Picket signs carried by
Price and San in the instant case were synonymous with
those in Giant Food Markets, and thus plainly of "area
standards" character.9
Given this comparability, the question quickly be-
comes one of whether consideration of Sears Roebuck &
Co. v. Carpenters, 436 U.S. 180 (1978), must dictate a dif-
ferent result. Respondent asserts that in Giant Food Mar-
kets the Board incorrectly -differed with the United
6 It is true, however, that their powers of observation or recollection
are somewhat suspect when the two versions of their testimony are com-
pared, particularly about Ramey not adding the colorful and presumably
memorable final exchange between Nepper and Hawkins.
' Food Employees v Logan Valley Plaza, 391 U.S. 308 (1968).
8 Central Hardware Co. v. NLRB, 407 U.S. 539 (1972).
9 The fact that both these individuals were alleged discriminatees in a
case awaiting decision following trial does not appreciably change their
status as nonemployees. From Respondent 's standpoint, and here empha-
sizing its property rights as technical lessee of realty , such persons were
validly discharged for cause and lacked any continued connection to the
business My observation is without force regarding the collateral issues
of discharge, but only to highlight that for analytical purposes here they
were equitable , with nonemployees , particularly since accompanied at the
time by staff functionaries of the Union.
819
States Supreme Court regarding the significance of area
standards picketing, and that in Hutzler the high Court's
holding was simply ignored.1 ° My own duty is to abide
the Board's doctrine, unless unaccountably at odds with
evident teaching of the United States Supreme Court.
In Sears, five justices, exclusive of a separate concur-
rence , traced the interplay of trespassing activity by
unionists and the relationship to fundamental accommo-
dation between state and Federal sovereignty as mani-
festing in the doctrine of preemption. This review cov-
ered Garner,' 1 Farmer,12 and Garmonls, leading the
Court to ' review the fact situation of Sears in which a re-
straining order of state court caused retreat of picketers
who had peacefully patrolled a private walkway in os-
tensible protest of construction craft personnel being uti-
lized inside an adjoining department store without
having been dispatched under an applicable master labor
agreement . From this the Court reasoned that the injunc-
tive action was privileged because the controversy pre-
sented to the state court was carefully focused only on
the location of the picketing, a "critical inquiry" quite
different from whatever controversy could have been
presented to the Board. Furthermore, the Court was in-
fluenced by the picketing union 's failure to file an unfair
labor practice charge and, that as a beleaguered enter-
prise Sears was without other effective remedy14 because
an unfair labor practice charge of its own would simply
trigger the, "complex factual and legal determinations
completely unrelated to the simple question whether a
trespass had occurred" in terms of whether the picketing
had a recognitional or work reassignment objective as
such would have triggered "arguable" protection under
Gannon in the absence of any contemporaneous state in-
terest of compellingly urgent need to protect. Cf. Labur-
num Construction Corp. v. Smith, 347 U.S. 656 (1954);
Auto Workers v. Russell, 356 U.S. 634 (1958); Linn v.
Plant Guard Workers Local 114, 383 U.S. 53 (1966);
Farmer, supra.15
The Court complicated its rationale with certain con-
jectures and assumptions, and in the process was moved
to comment that a related principle of NLRB v. Babcock
& Wilcox Co., 351 U.S. 105 (1956), scrutinizes the point
at which Section 7 rights other than hardcore organiza-
tional activity may be favorably accommodated when a
"locus" of their respective nature and strength as com-
pared to "private property rights asserted in any given
context" leads to some balanced choice at a point "along
the spectrum." At this point in the Sears opinion, the
Court was intrigued by whether trespassory activity was
113 Respondent reports in its brief that these Board decisions have been
appealed to the Sixth and Fourth Circuit Courts of Appeals, respectively.
11 Central Storage v Teamsters Local 776, 346 U.S. 485 (1953)
12 Farmer v. Carpenters, 430 U.S. 290 (1978).
is San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959).
14 The Court expressly discounted the course of mieek acquiescence as
"legitimately" disdained , or self-help as fraught with undesirable "risk of
violence "
15 I note that placid nature of picketing at the Martin Road store, and
contrary to Respondent's contention, hold that no interference to pro-
spective customer occurred . The evidence , pictorial and otherwise, does
not show obstruction of persons, deliberate blockage of the store's single
door, or any other conduct peculiarly different than when the shopping
public confronts a center of attention
820 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
inherently usually unprotected, yet tied the matter back
into Babcock & Wilcox in the sense that the collateral
question of alternative reasonable means of communicat-
ing the labor organization' s message, or discriminatory
treatment'of solicitations were each- involved. The Court
also wrote perhaps its most puzzling sentence,16 and fol-
lowed with opinion language and a footnote 42 upon
which Respondent -here places so much emphasis. Such
lengthy passages are quoted below:
Even on the assumption that,picketing to enforce
-area standards is entitled to the same deference in
the Babcock accommodation analysis as organiza-
tional solicitation,42 it would be unprotected in
most instances . While there does exist some risk, that
state courts will on ,occasion enjoin a trespass that
the Board would have protected, the significance of
this risk is minimized by the fact that in the cases in
which the `argument in favor of protection is the
strongest, the union is likely to invoke the Board's
jurisdiction and thereby avoid the state- forum.
Whatever risk of an erroneous state-court adjudica-
tion 'does exist is outweighed by the anomolous con-
sequence of a rule which would deny the employer
access to any forum in which to litigate either the
trespass issue or the protection issue in those cases
in which the disputed conduct is least likely to be
protected by §7.
If there is a strong argument that the trespass is
protected in a, particular case, a union can be ex-
pected' to respond to an employer demand to depart
by filing an unfair labor practice charge; the protec-
tion question would then be decided by the agency
experienced in accommodating the §7 rights of
unions and the property rights of employers in the
context of a labor dispute. But if the argument for
protection is so weak that it has virtually no chance
of prevailing, a trespassing union would be well ad-
vised to avoid the jurisdiction of the Board and to
argue'that the protected character of its conduct de-
prives that state court of jurisdiction.
42 This assumption, however, is subject to serious question.
Indeed, several factors make the argument for protection of tre-
spassory area-standards picketing as a category of conduct less
compelling than that for trespassory organizational solicitation.
First, the right : to organize is at the very core of the purpose for
which the NLRA was enacted . Area-standards picketing, in con-
trast, has only recently been recognized as a §7 right . Hod Carriers
Local 41 (Calumet Contractors Assn .), 133 N.L.R.B. 512 (1961).
Second , Babcock makes clear that the interests being protected by
according limited-access rights to nonemployee , union organizers
are not those, of the organizers but of the employees located on the
employer's property . The Court indicated that "no ... obligation
is owed nonemployee organizers"; any right they may have to so-
licit on an employer's property is a derivative of the right of that
employer 's employees to exercise their organization rights effec-
tively. Area-standards picketing , on the other hand , has no such
vital link to the employees located on the employer's property.
16 As stated in Sears, 436 U.S at 205:
For while there are unquestionably examples of trespassory union ac-
' tivity in which the question whether it is protected is very debatable,
experience under the Act teaches that such" situations are rare and
that a trespass is far more likely to be unprotected than protected.
Cf. Seattle First National Bank, 243 NLRB 898 (1979).
While such picketing may have a beneficial effect on the compen-
sation of those employees , the rationale for protecting area-stand-
ards picketing is that a union has a legitimate interest in protecting
the wage standards of its members who'are employed by competi-
tors of the picketed employer.i
Sears, supra at 206-207.
It is clear that the Board would routinely find a viola-
tion on the instant fact situation. In Giant Food Markets
the , Board sweepingly addressed Respondent's conten-
tions by noting that in ,a shopping center context the
labor organization's intended audience is not readily
identifiable, that practicalities of vehicular entry from a
public throughfare into such typical parking lots is not
conducive to orderly communication, and that area
standards picketing is an, "affirmatively protected" activi-
ty. Hutzler practically made a parody: of the, alternate
means of contact notion by analyzing the singular and
collective inadequacy of "newspapers, radio and televi-
sion stations, billboards, sound trucks, posters and ban-
ners, office space rentals, handbill distribution at parking
lot entrances, street contacts, telephone contacts and
home visits." Were this not enough, the opinion that the
Board` adopted even treated the prospect of tracing li-
cense plate numbers, intercepting persons at nearby bus
stops, or attempting to convey the desired message to in-
dividuals when found in nearby public places including
restaurants. I believe that the meaning of Sears is not
only that such a controversy as pertains here is uniquely
suited for NLRB 'resolution, but that the necessary bar-
ancing militates in favor of the Union. All of its agents
behaved peacefully and, with deference to legitimate
business interests. No alternate form, of publicity was
present beyond those types rejected ' in Hutzler, and an
unfair labor practice charge was promptly filed in protest
of forced suspension of picketing. Respondent has ad-
vanced no compelling property interest in the sense of
diminished value, and in fact as a lessee (rather than
lessor) is more immune from risk based on such an un-
welcome advent." 7 Further, there was an actual admis-
sion by, Tipton that Respondent has allowed bake sales
on its sidewalk, a circumstance no less disruptive to free
flow of customers than peaceful picketing seeking only
voluntary dialogue even while the approaching person
continues or quickens their step toward the entrance.18
I believe the most influential factor here was the threat
of arrest, the arrival of a police officer, and the subse-
quent prosecution. Most precedent that pertains to a
matter of this type merely involves injunctive relief
sought `institutionally against aiabor organization. Logan
Valley, supra; Giant Food Markets, supra; Hutzler Bros.,
supra. Here a personal jeopardy or apprehension was set
in motion without a showing that other less drastic op-
17 See Peddle Buildings, 203 NLRB 265 (1973); cf. Giant Food Markets
in which Wiggins & Co., a party to' the proceeding in the capacity of
lessor to other respondents, was found to have taken no action and was
thus exonerated from' allegations of unfair labor practice conduct.
is This is a specific indication of discriminatory treatment as empha-
sized by the Court in Sears, and ties ' into the fundamental question of
whether trespassory conduct need cause a forfeiture of private rights as
potentially contemplated in Babcock & Wilcox
UNITED SUPERMARKETS
tions were not available to Respondent.19 Again in, the
sense of a "spectrum," this pugnacious tactic is highly
coercive in nature and tips the balance in favor of a re-
medial restoration of the Section 7 rights so unjustifiably
abused. Accordingly, I render conclusions of law that by
threatening to cause arrest, and by causing arrest, of the
Union's pickets and representatives while they were en-
gaging in protected activity under Section 7 of the Act,
Respondent violated Section 8(a)(1) of the Act, but that
it has not violated the Act in any respect other than as
specifically found.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed20
ORDER
The Respondent, United Supermarkets, Inc., Amarillo,
Texas, its officers, agents, successors, and assigns, shall
1. Cease and desist from
19 I recognize that in Central Hardware an arrest was made, yet that
related to the field organizer of a union who ducked an outdoor confron-
tation and then persisted in remaining inside the store in guise of a "cus-
tomer." In Scott Hudgens, 230 NLRB 414 (1977), the tortuous fact situa-
tion and procedural background involved unfulfilled threats to arrest
pickets. In this latter case no law enforcement figure appeared, and to
that extent the arguably protected rights in process were not held up to
doubt in the public's eye or in the awareness of an employer's own em-
ployees.
20 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.
821
(a) Threatening to cause arrest, and causing arrest, of
any union pickets and representatives while peacefully
picketing as part of protected, conceited activity at Re-
spondent's portion of the Martin Road-Amarillo Boule-
vard shopping center.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its Amarillo, Texas, area stores and other
conspicuous places in the Martin Road-Amarillo Boule-
vard Shopping Center, copies of -the attached notice
marked "Appendix."2 t Copies of the notice, on forms
provided by the Regional Director for Region 16, after
being signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that'the notices
are not altered, defaced, or covered by any other materi-
al.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the consolidated
complaint be dismissed in all other respects.
21 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."