Wegmans Food Markets

National Labor Relations Board - Board Decisions

Dec 11, 1990

300 N.L.R.B. 868 (N.L.R.B. 1990)

868
300 NLRB No. 114
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has requested oral argument. The request is denied as the
record, exceptions, and briefs adequately present the issues and the positions
of the parties.
2 In affirming the judge’s application of the balancing standards established
in NLRB v. Babcock & Wilcox, 351 U.S. 105 (1956), and elaborated on in
Jean Country, 291 NLRB 11 (1988), to assess the relative strength of the Sec.
7 rights underlying the Union’s handbillng to inform the public that the Re-
spondent is nonunion and to ask customers to shop at union stores, we find
it unnecessary to consider whether the Union’s concurrent distribution of a
second union handbill that compared the Respondent’s prices in Rochester
with its prices elsewhere was protected by Sec. 7 of the Act because of that
handbill’s content and, thus, whether it does or does not provide an additional
basis for finding a violation of Sec. 8(a)(1) of the Act. Furthermore, even as-
suming arguendo that the Union’s distribution of the second handbill was not
protected, we would find no merit in the Respondent’s contention that the
strength of the Union’s Sec. 7 right to distribute the first handbill was so
weakened as to warrant a conclusion that its right to distribute the first hand-
bill did not outweigh the Respondent’s property interest.
1 The sidewalk is a public right of way.
2 One witness thought there might be a stop sign for exiting cars, but he
could not be certain.
Wegmans Food Markets, Inc. and United Food and
Commercial Workers District Union Local
One, AFL–CIO. Case 3–CA–14730
December 11, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On May 11, 1990, Administrative Law Judge Elea-
nor MacDonald issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel and the Charging Party filed an-
swering briefs.
The National Labor Relations Board has delegated
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 briefs1 and has
decided to affirm the judge’s rulings, findings,2 and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Wegmans Food Markets,
Inc., Rochester, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Ronald Scott, Esq. and Francis J. Novak, Esq., for the Gen-
eral Counsel.
Michael A. Hausknecht, Esq. (Nixon, Hargrave, Devans &
Doyle), of Rochester, New York; Gene L. Paley Esq.
(Philips, Lytle, Hitchcock, Blaine & Huber), of Rochester,
New York; and Paul S. Speranza Jr., Esq., of Rochester,
New York, for the Respondent.
Gene M. J. Szuflita, Esq. (Belson & Szuflita), of New York,
New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was tried in Rochester, New York, on October 18 and
19 and December 12, 1989. The complaint alleges that Re-
spondent, in violation of Section 8(a)(1) of the Act, prohib-
ited representatives of the Union from engaging in peaceful
informational handbilling protected by the Act in front of Re-
spondent’s Ridgemont store and disparately applied its policy
with respect to solicitation and distribution of literature at the
store. Respondent denies that the Act protects the Union’s
right to engage in handbilling on Respondent’s property, and
denies that it applied its policy in a disparate manner.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel, the Respondent and the Charg-
ing Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation with its principal office in
Rochester, New York, is engaged in the operation of retail
grocery stores throughout Western New York, including a re-
tail store in Ridgemont Plaza, Greece, New York. Respond-
ent admits and I find that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Ridgemont Plaza is a strip plaza located in Greece, New
York, a suburb of the City of Rochester. The plaza runs
along the south side of Ridge Road, a thoroughfare that is
oriented in an east-west direction. Respondent owns the plaza
and has the right to control the parking lot and the interior
sidewalks. There is a sidewalk along Ridge Road, and be-
tween the sidewalk and the plaza there is a grassy strip on
which trees and bushes are planted at intervals of several
feet.1
Three entrances give access to Ridgemont Plaza. Along
the eastern edge of the plaza from the two-lane road that
intersects Ridge Road, an opening that exceeds the width of
three car lanes permits cars to drive into the plaza. This
opening is not marked with paint stripes or barriers of any
kind; the evidence shows that cars entering or exiting the
plaza drive through this opening at any point and without en-
countering any traffic signal.2 Another entrance to the plaza
is located on Ridge Road toward the eastern end of the plaza
and the third entrance is on Ridge Road toward the western
end of the plaza. Both of these openings are the width of
four lanes of traffic; two lanes of each opening are marked
for entrance to the plaza from Ridge Road and two lanes are
marked for exit from the plaza to Ridge Road. The opposite
lanes in each opening are divided by a concrete median
869WEGMANS FOOD MARKETS
3 The record does not provide any details concerning the other stores.
4 Although reference was made to a written policy, Respondent did not in-
troduce it into evidence.
5 Respondent did not explain the liability concerns.
6 Testimony on this point was given by Elina Mavromatis, administrative as-
sistant to the president of Respondent, and Brian Scanlon, director of loss pre-
vention for Respondent.
7 Respondent tells candidates that its customers are more receptive to polit-
ical literature after they have completed their shopping; also, Respondent wish-
es to eliminate the possibility that literature will be discarded inside the store
as litter.
8 The Union represents employees in upstate New York, and parts of Penn-
sylvania, Vermont, and Massachusetts.
about 4-feet wide and raised about 5 inches above the sur-
face of the roadway. The medians extend about 100 yards
into the plaza.
The speed limit on Ridge Road is 40 miles per hour. The
road has four lanes of traffic; two lanes are eastbound and
two lanes are westbound. Cars traveling along Ridge Road
in an easterly direction enter Ridgemont Plaza by turning
right directly from the lanes of traffic without benefit of a
turn lane. Cars traveling west along Ridge Road use a central
turn lane controlled by a traffic signal in order to make the
left turn into Ridgemont Plaza.
Ridgemont Plaza contains about 29 stores in a strip ar-
rangement. In addition to owning the plaza itself, Respondent
owns and operates a Wegmans supermarket which is the
easternmost store in the plaza. The supermarket is the second
or third largest store in the plaza.3 All the stores in the strip
have their own entrances directly from the plaza. The park-
ing area for the plaza is not delineated nor reserved for the
use of any of the stores in particular. Thus, cars may be
parked anywhere in the plaza and their occupants may pa-
tronize any of the 29 stores in the plaza. Similarly, the three
entrances to the plaza do not indicate that any one of them
is reserved for the use of patrons of a particular store. Re-
spondent’s security personnel are aware that cars enter the
parking lot using the entrance nearest its supermarket and
then drive across the lot directly to other stores. There is
very little pedestrian traffic into the plaza; most customers
drive in and park their cars in the plaza.
Wegmans supermarket stands directly facing the eastern
four lane median-divided entrance to the plaza from Ridge
Road. The witnesses who testified concerning the matter all
agreed that the entrance on Ridge Road is from 500 to 600
feet away from Respondent’s supermarket. The entrance to
the supermarket itself is in the front west corner of the store.
The sidewalk in front of the store is 15 feet deep. The store
entrance is 15 feet wide; it opens into a sort of alcove or
foyer and the inner door to the store is about 10 feet wide.
The foyer contains a community bulletin board.
The only witness who offered specific testimony on the
subject stated that the traffic flow on Ridge Road is heavy.
At the time the disputed handbilling took place, over 100
cars per minute drove by the plaza entrance.
The evidence shows that until a few years ago, possibly
until 1985, Respondent did not have a no-solicitation policy.
At some point, a policy was adopted prohibiting solicitation
except by political candidates during the traditional cam-
paigning season.4 Respondent’s asserted reasons for the par-
tial no-solicitation policy are that it wishes to avoid annoying
its customers and that it is concerned about possible liabil-
ity.5 According to Respondent’s witnesses, the policy pro-
vides that politicians or their supporters may campaign and
distribute literature with prior permission.6 The candidates
call and then give written confirmation to the main office
which schedules their appearance at a supermarket for a cer-
tain date and time. Respondent permits up to two candidates
to campaign at a time, and each side may have two people
appear on its behalf. Each appearance is limited to 2 hours’
duration. Respondent instructs campaigners to hand literature
only to departing customers and it prohibits the placement of
literature under windshield wipers of cars parked in the lot.7
Although no specifics were placed in evidence, the testimony
shows that in 1987 customers complained of an ‘‘over-
zealous’’ candidate and that person was denied permission to
campaign further. In 1988, Respondent denied permission to
campaign to Lyndon LaRouche candidates because of a ‘‘vir-
ulent’’ approach to handing out literature. According to Re-
spondent, it does not permit candidates to get up tables, to
collect signatures, or to make speeches because there is too
much customer traffic to permit those activities. Respondent
denies permission to campaign for other than political elec-
tions; thus it has refused to permit campaigning for school-
related elections.
Much of Respondent’s evidence concerning the partial no-
solicitation policy was given in general terms, that is, the
corporatewide policy was set forth. Perhaps because most of
Respondent’s stores are freestanding and not in strip plazas,
this testimony was limited to instances of campaigning in
front of supermarkets. There was also testimony concerning
the Wegmans supermarket at issue herein, that is, the store
in Ridgemont Plaza. Two former assistant managers testified
that on several occasions between 1986 and 1988, they pro-
hibited certain solicitations from the front of the supermarket.
Thus, a disabled person selling items, a school group selling
candy and a veterans group selling poppies were told to
leave and did leave from the front of the store. Again, this
testimony related to the front of the Wegmans supermarket
in Ridgemont Plaza. There was no evidence that other store
owners and operators in Ridgemont Plaza similarly enforced
a partial no-solicitation policy in front of their stores in
Ridgemont Plaza. At least 1 and possibly 2 of the stores in
the plaza are larger than the Wegmans supermarket, and
there are a total of 29 stores in the plaza. There is no basis
for concluding that these stores have any no-solicitation pol-
icy nor that Respondent requires them to have a no-solicita-
tion policy nor that Respondent removes from the doorways
or sidewalks of those stores any noncandidates who may be
soliciting or handbilling patrons of those stores.
B. Handbilling by the Union
The Union has from 35,000 to 40,000 members according
to Jay Bloom, its director of public relations.8 About 75
precent of these members are employed in the retail food in-
dustry, and the rest are in the health care and other service
and manufacturing industries. The average wage in the retail
food industry is $5 per hour. Bloom testified that a few years
ago, a union- represented food market went out of business
in the Albany area, hurt by price cutting engaged in by a
nonunion store. In the Elmira-Corning area of New York, a
Wegmans store moved in and four or five organized stores
went out of business and members of the Union lost their
jobs. As a response to this loss of jobs by its members, the
870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 In Rochester, the two nonunion chains targeted were Wegmans and
Hagedorns. Wegmans has a number of stores in the Rochester area.
10 Respondent presented two witnesses to comment on the cost and effec-
tiveness of media campaigns and handbilling in front of the supermarket. Nei-
ther of these witnesses had any expertise in labor campaigns nor were they
familiar with the fact of the instant case. I shall not rely on their testimony.
11 Before becoming an employee of the Union, Phelan had a career in law
enforcement.
12 These two employees were wearing large bibs that said, in substance, do
not shop at Wegmans because it is a nonunion store.
13 The handbillers did not have time to ask the occupants of the cars where
in the plaza they intended to shop.
14 Phelan did not keep track of the number leaving the plaza.
Union began the Organizing Defense Campaign in May,
1988. The purpose of the campaign is to promote greater job
security for members of the Union through an informational
program directed to the public and employees of nonunion
employers. At first, the Organizing Defense Campaign was
addressed primarily to the food industry, but it is gradually
moving into other industries. Activities on behalf of the cam-
paign have been undertaken in Buffalo, Utica, Albany, Syra-
cuse, Ithaca, Corning, and Binghamton, New York. In Roch-
ester, the Organizing Defense Campaign began in September
1988, with a press conference followed by handbilling at var-
ious locations.9
In some cities other than Rochester, the Union has sent
mail directly to households with union members as part of
its Organizing Defense Campaign. It has also conducted
‘‘telepicketing’’; this activity involves calling telephone num-
bers and informing those who answer of the campaign. The
union caller asks the person on the telephone to support the
union by shopping in union stores. These types of activities
require the Union to bear the cost of the worker performing
the service, the cost of mail or telephone service, and the
like. Union witnesses testified that these activities were halt-
ed or severely limited due to financial constraints. Similarly,
media campaigns such as newspaper, radio, television, and
bus advertising are judged too expensive and do not suffi-
ciently target the audience.10
The handbillers are paid $5 per hour by the Union. They
are laid-off or retired union members or members of other
unions. The instructions given to handbillers are that they
should politely deliver the handbills to potential customers
and ask them not to shop in the nonunion store but instead
to please shop at the union stores listed on the reverse of the
handbill. If an individual customer has a question, the
handbillers are instructed to fetch the line captain; this is a
person with training in union issues and in the Union’s aim
to protect the job security of members by getting consumers
to shop at union stores. Bloom testified that the Union has
no plans to organize nonunion chains such as Wegmans; be-
cause of their large size, the Union does not have the re-
sources to organize their employees. Trade publications put
the Wegmans share of the retail food market at 71 percent.
The Union views Rochester consumers as hard to reach be-
cause there are so many Wegmans stores and only a few
union stores.
On December 8, 1988, the Union engaged in handbilling
at Ridgemont Plaza. Stephen E. Phelan, an organizer for the
Union, testified that he and five other union employees went
to the plaza about noon on that day.11 Their purpose was to
distribute two handbills. One handbill distributed that day
bore a heading with the Union’s name. It also said, ‘‘We’re
up front protecting union jobs.’’ The central message, written
in large letters stated, ‘‘Please don’t shop Wegmans non-
union.’’ On the back of the handbill, was the message
‘‘Please shop union’’ and a listing of 14 upstate New York
union food chains and over 50 union independent food
stores. The second handbill distributed on December 8, 1988,
was headed ‘‘UFCW keeps pressure on Wegmans prices.
Rochester grocery prices are coming down thanks to you.’’
The three paragraphs of text stated that in September, union
price checks showed that Wegmans prices were higher in
Rochester than Syracuse and Buffalo but that the prices had
been coming down as a result of complaints. Customers were
urged to call Wegmans to complain about the cost of gro-
ceries. On the back of this handbill was a list of 33 items
bought at Wegmans stores in four different locations show-
ing that the total cost of the items purchased in the Rochester
store was more than the cost at Wegmans in Buffalo, Syra-
cuse and Henrietta.
Phelan was in charge, and he directed two of the union
employees to stand at the end of the concrete median inside
the plaza entrance just opposite Wegmans supermarket.12
The two were about 5 feet off the edge of Ridge Road. They
attempted to give handbills to occupants of cars entering and
exiting the plaza. If a car stopped and the window was down,
the handbillers would give the occupants the literature and
ask them not to shop at Wegmans because it was a nonunion
store. If they had time, they would also mention that union-
conducted price checks of local food stores showed that the
prices charged by Wegmans were higher than those at union
stores in the area. Phelan testified that it took about 10 sec-
onds to give out a handbill and deliver a verbal message.13
The two handbillers remained out near the highway for about
20 minutes. In that time, 60 to 70 cars entered the plaza from
Ridge Road.14 About 15 of these cars stopped and received
the handbills. Three times during the 20 minutes that the
handbillers were at the plaza entrance, their activities slowed
traffic to such an extent that a backup developed of three or
four cars in the eastbound lane of Ridge Road. On each of
these three occasions, Phelan told the handbillers to cease at-
tempting to give out handbills and to let the traffic flow into
the plaza. Phelan testified that it was unsafe to create
backups into Ridge Road and that he was concerned that the
police would intervene if the handbilling created a traffic
jam.
After 20 minutes of observing the handbillers and their ef-
forts at the plaza entrance, Phelan testified, he determined
that handbilling at the position near the highway was ineffec-
tive. The handbillers did not know who was going to shop
at Wegmans. As a result of his determination, Phelan and
three other handbillers went to the front entrance of
Wegmans supermarket and began handbilling. Two union
employees stationed themselves on the sidewalk at the west-
ern corner of Wegmans near the store entrance and the other
two stayed on the sidewalk near the eastern corner of the
store. The union employees gave out the handbills and spoke
to those customers who wanted to talk. During the 35 min-
utes that the handbilling was conducted near the store, about
five shoppers per minute either entered or exited the store.
About 200 handbills were distributed. It is undisputed that
the four handbillers did not interfere with customer traffic to
Wegmans and that no customers complained of any disturb-
ance or inconvenience.
871WEGMANS FOOD MARKETS
15 There is some suggestion in the record, based on incidents at other
Wegmans locations, that Respondent might not have objected to the Union’s
handbilling if it had been confined to the median near the highway. However,
this was never clearly stated. Moreover, on the day that Respondent’s agents
ordered the union employees to leave the property, they clearly asserted a pri-
vate property right to the entire plaza, not just the sidewalk in front of the
supermarket, and they specifically told the union employees to take their ac-
tivities out to public property. Thus, I shall base my findings on Respondent’s
demand that the union agents leave Ridgemont Plaza and cease handbilling on
private property.
16 Respondent did not introduce the results of this survey.
After about 35 minutes during which the four handbillers
remained in front of the supermarket, security personnel from
Wegmans arrived on the scene. These were Scanlon, the di-
rector of loss prevention, Robert Hill, whose title does not
appear in the record, and an unnamed camera operator. Hill
told Phelan that he was on private property and Hill told
Phelan to leave the plaza and conduct his activities near the
roadway. According to Phelan, Hill told him that Wegmans
owned the entire plaza, not just the supermarket, and Hill
told Phelan that Wegmans was asserting its authority to re-
quire him to leave and take up a stand on public property.
Phelan knew the Wegmans security men, having been ar-
rested on two prior similar occasions at their behest, and on
this occasion he left the Wegmans property rather than risk
arrest.15 Since December 8, 1988, the Union has not returned
to Ridgemont Plaza to handbill because it believe that it
could not communicate effectively out at the highway.
Phelan testified that he did not use picket signs at
Wegmans because the message he wanted to deliver was too
long for one sign. The Union wanted to inform potential cus-
tomers of Wegmans not only to avoid shopping at Wegmans
but also to patronize certain unionized stores in the area. The
Union also wanted to inform potential customers of
Wegmans about the price checks and the purpose for con-
ducting them. Phelan judged that these two messages could
not be read from signs while making a turn off a 40-mile-
per-hour highway.
Phelan also reached a judgment that handbilling at the en-
trance from Ridge Road was dangerous. He testified that on
October 12, 1989, he went to Ridgemont Plaza and observed
a young woman standing near the concrete median. A tem-
porary stop sign had been placed there and as cars coming
into the plaza stopped, the young woman asked the occu-
pants if they were going to Wegmans and then she recorded
their responses. The young woman told Phelan that she
worked for Wegmans and that she felt safer at the cash reg-
ister than at the plaza entrance.16 Phelan also testified that
he could not station handbillers at the large, unmarked en-
trance to the plaza from the eastern-side road. Cars come
from all directions there and it is too dangerous to stand in
that location and try to stop cars in order to deliver a hand-
bill and a message.
Phelan stated that there were about 5000 UFCW members
in Rochester. He did not know the total number of organized
employees there were in Rochester nor what percentage of
the work force was organized.
C. Discussion and Conclusions
A discussion of the Union’s right to handbill in front of
Wegmans store must begin with the Board’s decision in Jean
Country, 291 NLRB 11 (1988). In that case, the Board con-
sidered whether nonemployed union agents could picket a
store located in a mall in order to inform the public that the
employees of the store were not represented by a union. The
Board summed up its approach to the issue as follows (at
14):
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 ac-
cess should be granted. We view the consideration of
the availability of reasonably effective alternative
means as especially significant in this balancing proc-
ess. [Denial of access will more likely be found unlaw-
ful when property is open to the general public than
when a more private character has been maintained.
The Board held that:
[t]he General Counsel bears the initial burden on the al-
ternative means factor, i.e., that the General Counsel
must show that without access to the property, those
seeking to exercise the right in question have no rea-
sonable means of communicating with the audience that
exercise of that right entails. . . . This does not nec-
essarily mean that, . . . the General Counsel must show
that the party engaging in the Section 7 conduct actu-
ally attempted those means and found them futile. What
is required is simply a clear showing, based on objec-
tive considerations, . . . that reasonably effective alter-
native means were unavailable in the circumstances.
. . . We note however that, generally, it will be the ex-
ceptional case where the use of newspapers, radio, and
television will be easible alternatives to direct contact.
[Id. at 13.]
The Board went on to explain:
Factors that may be relevant to assessing the weight
of property rights include, but are not limited to, the
use to which the property is put, the restrictions, if any,
that are imposed on public access to the property, and
the property’s relative size and openness. . . . Factors
that may be relevant to the consideration of a Section
7 right in any given case include, but are not limited
to the nature of the right, the identity of the employer
to which the right is directly related . . ., the relation-
ship of the employer or other target to the property to
which access is sought, the identity of the audience to
which the communications concerning the Section 7
right are directed, and the manner in which the activity
related to that right is carried out. Factors that may be
relevant to the assessment of alternative means include,
but are not limited to, the desirability of avoiding the
enmeshment of neutrals in labor disputes, the safety of
attempting communications at alternative public sites,
the burden and expense of nontrespassory communica-
tion alternatives, and, most significantly, the extent to
which exclusive use of the nontrespassory alternatives
would dilute the effectiveness of the message. [Ibid.]
Applying the Jean Country test to the facts herein, I find
that although Respondent owns both the plaza and the super-
market, its private property rights do not weigh heavily.
Ridgemont Plaza is open to the public and the public is in-
872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Nor could picket signs be read by customers standing in front of the su-
permarket itself; the nearest public sidewalk would be about 600 feet away.
vited to park anywhere in the plaza in order to visit any of
the 29 stores located there. There is no evidence that Re-
spondent restricts solicitation in the plaza generally nor that
it restricts solicitation in front of stores other than the
Wegmans supermarket. And even in front of the Wegmans
market, the ban on solicitation is only partial. Respondent
permits campaigning by up to four people at a time on behalf
of candidates on the ballot for public office. The cam-
paigners approach Wegmans’ customers, give them literature,
and engage them in political discussions. It is self-evident
that political campaigns often concern controversial issues
which arouse the strong feelings of those subjected to the
campaign messages. The facts thus do not support a claim
by Respondent that it has a particularly compelling and
strongly held property right in the instant case.
The right of the Union to inform the public that Wegmans
supermarket is nonunion and to request that customers shop
instead at a named union store is not considered a core Sec-
tion 7 right, although it is protected by the Act. However,
following the Board’s test for determining the weight of the
right asserted by the Union, I note that the right is directly
asserted with respect to Wegmans as an employer of non-
union employees, that Wegmans owns the store to which ac-
cess is sought, that Wegmans customers are the audience ad-
dressed by the Union’s campaign and that the Union engaged
in peaceful nonobstructive handbilling. Thus, I conclude that
while the Union’s right is not at the core of Section 7 rights
under the Act, it is relatively strong in the circumstances of
the case.
Finally, in considering the availability of reasonably effec-
tive alternative means, I note that when the union agents
were asked to leave Ridgemont Plaza they were specifically
told that Respondent owns the entire plaza and that they
must handbill only on public property. This would have re-
quired the union employees to stand on the sidewalk adjacent
to one of the three plaza entrances. Standing at the eastern-
most entrance from the side road to the east of the plaza is
not a reasonable means of distributing handbills and commu-
nicating with potential Wegmans customers. This entrance
has no lane markings, and it would be dangerous to stand
in front of it trying to stop cars coming from several direc-
tions at any given time. While the two entrances from Ridge
Road each have a median divider, it is only marginally safer
to stand there; the cars come off a 40-mile-per-hour road and
turn into the plaza directly from the highway. Since traffic
on Ridge Road is heavy, there is a tendency for cars to back
up out into the roadway if one car stops while a handbill is
being given out and a short message delivered. Although a
picket sign might be visible, it would not be safe for the
driver of a car turning into the plaza to stop and read the
sign. Moreover, the Union wishes to direct potential cus-
tomers of Wegmans to the nearby union food stores, and a
list of these stores cannot readily be read from a picket
sign.17 Further, if one is stationed at the entrance to the
plaza, it is not possible to ascertain which cars contain poten-
tial customers of the Wegmans supermarket. The super-
market is the second or third largest store in a mall con-
taining 29 stores: thus, the probabilities are that many people
entering Ridgemont Plaza are not intending to shop at
Wegmans supermarket. Or, the people may be entering the
mall to shop at other stores and might later decide to go to
the supermarket on impulse; by then, they may have forgot-
ten the Union’s message and its request that they patronize
supermarkets whose employees are union members. Re-
spondent conducted a survey of cars entering the plaza from
Ridge Road directly opposite the supermarket and it did not
use this survey to show that most of the cars entering at that
location were bound for the supermarket. Thus, if the Union
is not permitted to handbill on the sidewalk in front of the
supermarket itself, its message is substantially diluted, it
risks enmeshing neutrals in the dispute, and it risks the safety
of its own employees and that of the public.
I conclude that General Counsel has met the burden of
showing that no reasonable means exists of communication
with potential customers of the supermarket without access
to the property. W. S. Butterfield Theatres, 292 NLRB 30
(1988), (picketing and handbilling near the entrance to the
parking lot found to be ineffective and unsafe where cars
turn into the lot from a four-lane street with a 35-mile-per-
hour speed limit and potential patrons could not read picket
signs from the theater entrance); Target Stores, 292 NLRB
933, 935 (1989) (‘‘picketing at the main parking lot entrance
was generally ineffective and dangerous owing to the dif-
ficulty of reading the picket signs under existing traffic speed
and safety conditions. Handbilling at the main entrance also
caused traffic congestion and was dangerous; the slow rate
of distribution through windows to car occupants also ham-
pered communication of the Union’s message’’; Mountain
Country Food Store, 292 NLRB 967, 969 (1989) (‘‘in view
of the detailed nature of the Union’s message in which it
sought to persuade potential customers not to purchase Coca-
Cola products bottled by the Employer, the information could
not be fully contained on a picket sign’’).
Although Respondent suggests that the Union should be
compelled to use a media campaign as well as certain direct
mail and telephone methods to reach potential Wegmans cus-
tomers, the Board has emphasized that it will find that a
media campaign is a feasible alternative only in an ‘‘excep-
tional case.’’ There is nothing in the record before me to in-
dicate that the instant matter is an exceptional case. Respond-
ent has not suggested any exceptional circumstances. Indeed,
it would be difficult to make out an exceptional case where
the property owner invites the general public onto its prop-
erty and excludes solicitations in so incomplete and partial
a manner as is demonstrated herein. Respondent has pointed
out that as part of its overall Organizing Defense Campaign,
the Union has sent mail to union households in certain areas
of upstate New York, has conducted telephone drives to alert
consumers to the campaign, and asked them to shop in
unionized stores, and has distributed lawn signs in certain
areas. These efforts were not undertaken in the Rochester
area at issue herein. This circumstance does not create an ex-
ceptional case. The General Counsel’s witnesses testified that
direct mail, advertising, and telephone campaigns are expen-
sive and diffused and that giving out handbills is cheap and
effective. Respondent attempted during the hearing to de-
velop information relating to the amount of money in the
union treasury so that it could show that the Union could af-
ford a media campaign or the like in Rochester. This attempt
by Respondent must be emphatically rejected. If Respond-
ent’s tactics reduced the instant case to a subjective analysis
873WEGMANS FOOD MARKETS
18 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 objec-
tions to them shall be deemed waived for all purposes.
of the Union’s relative ability to pay, then the Board’s
decisional processes would be invoked to tell the Union in
what manner and to what degree of expense the Union
should undertake to achieve its aims. This interference in the
internal affairs of a union was never contemplated by the
Act.
Respondent relies on the Board’s decision in Red Food
Stores, 296 NLRB 450 (1989). In that case, three locations
were picketed and handbilled by the union. The locations
were a free-standing store and two stores in very small strip
malls containing six and nine stores, respectively. After the
owners obtained a state court injunction barring picketing in
front of the stores, the union continued picketing and
handbilling on the public perimeter areas surrounding the
parking lots. The Board found that the private property right
was strong; there was no evidence of solicitation by other in-
dividuals or entities. The Board further found that General
Counsel had not met the burden of showing that the alter-
natives actually employed by the union were not effective.
In Red Food Stores, the union had actually picketed the
stores for 3 months at perimeter locations. The evidence did
not show that customers in front of the stores or entering the
parking lots could not read the picket signs. There was no
risk of dilution of the union’s message or of enmeshing
neutrals because of the small size of the strip malls. The
Board specifically distinguished its findings in Jean Country
where there were longer distances to the stores from the
parking lot entrances and more stores and more customers on
the premises. The Board also found that the union in Red
Food Stores had actually conducted a media campaign while
the picketing and handbilling were going on. The Board em-
phasized that although it would be ‘‘reluctant to impose the
cost of a media campaign on a union, the Union here in fact
utilized a media campaign and the circumstances of this case
do not persuade us that the commercials here, considered in
conjunction with the picketing and handbilling at the perim-
eters of the stores, were not an effective alternative means.’’
The Board discussed a respondent’s contention that a union
should undertake a newspaper, direct mail, and neighborhood
campaign in Sentry Markets, 296 NLRB 40 (1989). In that
case, where many of the facts regarding the traffic conditions
surrounding the shopping mall were similar to the facts here-
in, the Board noted that no exceptional case warranting the
conducting of a media campaign had been made out. The
Board found that the alternatives suggested by the respondent
‘‘would not be reasonable alternatives here because they
would move the Union’s message too far in time and dis-
tance from the point of purchase.’’ (Id. at 43.) The Board
also observed that handbilling exiting cars was not effective
because at that point the customers had already made their
purchases.
The facts in the instant case are more like those in Jean
Country than those in Red Food Stores. The facts show that
it is unsafe to handbill on the perimeter entrances of
Ridgemont Plaza, customers at the stores are far from any
message delivered at the perimeter, there are many stores at
the Ridgemont Plaza thus increasing the dilution of the
Union’s message and the likelihood of enmeshing neutrals,
certain types of solicitation are permitted in front of the su-
permarket and there is no evidence that solicitation is prohib-
ited elsewhere in the mall, and the Union has not in fact ac-
tually carried on a media campaign in the Rochester area.
In summary, I find that the Section 7 right at issue herein
would be substantially impaired if access to the Wegmans
supermarket were denied in view of the lack of a reasonably
effective alternative of reaching the intended audience for the
Union’s message. I find that the degree of impairment of Re-
spondent’s property right is slight given the facts relating to
public access to Ridgemont Plaza and the sidewalk in front
of Wegmans supermarket. I conclude that the balance re-
ferred to in Jean Country tips in favor of granting access to
the Union. Thus Respondent violated Section 8(a)(1) of the
Act by denying access to the Union to distribute handbills
in front of the Wegmans supermarket in Ridgemont Plaza.
The General Counsel also argues that Respondent applied
its no solicitation rule in a disparate manner. The facts show
that Respondent regularly permits up to four campaigners at
a time to handbill and solicit support for political candidates
on the sidewalk in front of its supermarket. Further, there is
no evidence that there is any no-solicitation rule applicable
to Ridgemont Plaza as a whole as distinct from the area im-
mediately surrounding the supermarket. In the instant case,
the Union sought to have four of its employees distribute
handbills on the sidewalk in front of the supermarket. It is
undisputed that these activities did not cause any inconven-
ience or disturbance during the time they continued on De-
cember 8, 1988. Respondent has suggested no rationale to
support the granting of access to political candidates while
prohibiting access to representatives of the Union. I conclude
that Respondent’s denial of access to the Union to handbill
on the sidewalk in front of its supermarket constitutes unlaw-
ful disparate treatment of union activities in violation of Sec-
tion 8(a)(1) of the Act. D’Alessandro’s, Inc., 292 NLRB 81
(1988); Ordman’s Park & Shop, 292 NLRB 953 (1989).
CONCLUSION OF LAW
By prohibiting representatives of United Food and Com-
mercial Workers District Union Local One, AFL–CIO from
distributing handbills on the sidewalk in front of Respond-
ent’s store in Ridgemont Plaza in order to advise the public
that Respondent’s store is nonunion and to request the public
to shop at unionized stores, and by enforcing its partial no
solicitation policy in a disparate manner, Respondent has vio-
lated Section 8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended18
ORDER
The Respondent, Wegmans Food Markets, Inc., Rochester,
New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Prohibiting representatives of United Food and Com-
mercial Workers District Union Local One, AFL–CIO from
874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National 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.’’
engaging in handbilling in front of Wegmans supermarket in
Ridgemont Plaza, Greece, New York, in order to inform the
public that Wegmans is nonunion and to request the public
to shop at unionized stores.
(b) Enforcing its partial no-solicitation rule in a disparate
manner against the Union.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its supermarket in Ridgemont Plaza in Greece,
New York, copies of the attached notice marked ‘‘Appen-
dix.’’19 Copies of the notice, on forms provided by the Re-
gional Director for Region after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT prohibit representatives of United Food and
Commercial Workers District Union Local One, AFL–CIO
from engaging in handbilling in front of Wegmans super-
market in Ridgemont Plaza, Greece, New York, in order to
inform the public that Wegmans is nonunion and to request
the public to shop at unionized stores.
WE WILL NOT enforce our partial no solicitation rule in a
disparate manner against the Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WEGMANS FOOD MARKETS, INC.