Best Co.

National Labor Relations Board - Board Decisions

Apr 26, 1989

293 N.L.R.B. 845 (N.L.R.B. 1989)

BEST CO 845
Dolgin's , a Best Company and IBEW Local 545, af-
filiated with International Brotherhood of Elec-
trical Workers , AFL-CIO and Laborers Inter-
national Union of North America , Local No
579 and Local No 110 of the Carpenters Dis-
trict Council of Greater Kansas City and Vicini-
ty, Jointly and IBEW Local 124, affiliated with
International Brotherhood of Electrical Work-
ers, AFL-CIO Cases 17-CA-13038, 17-CA-
13041, and 17-CA-13073
April 26, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN, HIGGINS, AND
DEVANEY
On April 29, 1987, Administrative Law Judge
Peter E Donnelly issued the attached decision
The General Counsel and Charging Parties IBEW
Locals 545 and 124 filed exceptions and supporting
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
conclusions only to the extent consistent with this
Decision and Order
This case involves the Respondent's order that
union representatives who were handbilling its cus-
tomers at five of its stores leave its property The
Unions handbilled because the Respondent was
having remodeling work done at each of these
stores by nonunion contractors who the Unions be-
lieved paid below the area standards The handbills
informed potential customers of this and requested
them not to patronize the stores and to express
their concern to the Respondent's management
The first instance of handbilling occurred on
July 2, 1986, at the Respondent's St Joseph, Mis-
souri store 1 Three representatives of local unions
stationed themselves near the entrance of the store
After handbilling for about 10 minutes, the Re
spondent's store manager told them that they were
on private property and asked them to leave One
handbiller explained that they believed that they
had a right to handbill there and the manager
stated that they would have to leave They then
left
The business manager for the IBEW local testi-
fied that they did not handbill at the parking lot
i The St Joseph store is surrounded by its own parking lot that has
two entrances on Belt Highway a four lane road that has a 40-mile per
hour speed limit and two entrances on Cook Road a two lane road with
a 25 mile per hour speed limit Separating the parking lot and the roads
are grassy areas about 25 feet wide There are no sidewalks
entrances because of the danger to themselves and
to the cars He noted the danger of rear-end colli
sions because one would have to stop the car to
get a handbill
Later in the month the Respondent began re-
modeling work in four of its Kansas City area
stores using a nonunion electrical subcontractor
with whom the IBEW local had had prior disputes
On July 31 two IBEW representatives were sent to
handbill at each of the four stores
At the North Kansas City, Missouri store2 an
IBEW local business representative and a local
member stationed themselves about 18 feet from
either side of the entrance to the Respondent's
store about 6 25 in the evening After about 5 min-
utes of handbilling a manager of the store told
them that they were on private property and
would have to distribute the handbills on the
grassy area off the Respondent's property When
one of the handbillers stated that he thought that
they had a right to be there, the manager repeated
his statement and motioned to where they should
go After this conversation another employee of
the Respondent told the handbillers that the police
were being called The police arrived about 7 35
p in and told the handbillers that they had to leave
the Respondent's property, which they did
The business representative testified that they
had not handbilled from the public grassy area be
cause their first concern was safety, the customers'
and their own
At the Overland Park, Kansas store3 an IBEW
local business representative was stationed at one
entrance and a local union member was stationed
at the other entrance about 6 20 in the evening
After about 10 minutes of handbilling the assistant
manager and a security guard told them that they
were trespassing and would have to be on the
public sidewalk When the business agent said that
they had a right to handbill there and declined to
leave, the assistant manager said that he would take
appropriate measures The Respondent called the
2 The store is surrounded by its own parking lot The lot has two en
trances on Burlington Street that has six lanes of traffic no turn lane and
a 40-mile per hour speed limit an entrance on 26th Avenue a two lane
35 mile per hour street and an entrance on Terry Street which had a 35
mile per hour speed limit The parking lots and the streets are separated
by public grassy strips between 6 and 12 feet in depth There is a side
walk on at least the Terry Street side
3 The store with its parking lot in front of it faces Santa Fe Drive a
four lane 40-mile per hour street The most-often used entrance to the
Respondents store is entered by a turn lane off of Santa Fe This en
trance has two incoming lanes and two exiting lanes with a median in
between Some cars use this entrance to go to a strip shopping center ad
jacent to the Respondent s property that similarly faces Santa Fe or to
go to a fast food restaurant near the entrance The Respondents parking
lot also had an entrance on Farley Avenue which has two lanes and a 30-
mile per hour speed limit There is a public grassy area and sidewalk on
the Santa Fe Avenue side of the parking lot
293 NLRB No 102
846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
police and in another 10 minutes three police cars
arrived A policeman asked the handbillers to leave
the Respondent's property, which they did
The business representative testified that they
handbilled there rather than on public areas be-
cause they wanted to reach the Respondent's cus
tomers, not customers of the other stores there, and
because of safety He noted that in order to hand
bill a driver of a car the handbiller would have to
be in the street
At the Kansas City, Kansas store4 a local busi-
ness representative and a local member began
handbilling near the store's entrance about 6
o'clock in the evening About one half hour later
the assistant manager told the handbillers that it
was the store's policy not to allow soliciting on its
property and he asked the handbillers to move to
the public area where picketers had been previous-
ly The assistant manager then left, and the hand
billers remained until 9 p m
The business representative testified that there
was no other way to handbill at that store and that
because there was no sidewalk, he would have had
to stand in the street
At the Kansas City, Missouri store 5 a local busi-
ness representative and a local member stationed
themselves near the store entrance about 6 20 in
the evening About 6 40 the assistant manager told
the handbillers that they would have to leave be
cause they were on private property The Re-
spondent then called the police who arrived about
7 10 and told the handbillers that they would have
to cease distributing handbills The handbillers left
about 7 25
The business representative testified that they did
not handbill at the parking lot entrances because it
would have impeded traffic and would have been
unsafe He noted that in order to give a handbill to
a driver he would have had to stand in the en-
trance where cars passed or, if he stood on the
grass, the driver, if there were no passengers,
would have to stop, roll down his window, and
lean over to get the handbill He stated that he saw
that many of the cars using the parking lot en-
trance were without passengers
4 The store is surrounded by a parking lot that has one entrance on
State Avenue which has two lanes a turn lane and a 40-mile per hour
speed limit three entrances on 74th Street that has two lanes and a 30-
mile per hour speed limit and an entrance on Armstrong Avenue which
has a 30-mile per hour speed limit The parking lot and the street are sep
arated by a public grassy strip There are no sidewalks
5 The store is surrounded by a parking lot that has two entrances on
Ararat Road a two lane 25 mile per hour road an entrance on Bristol
Road also a two lane 25 mile pe hour road and an entrance from an
unnamed street that also leads to a two store shopping area Separating
the parking lot and the street is a public grassy strip about 10 feet wide
The judge analyzed this case under Fairmont
Hotels He read that case to hold that when the
Section 7 right or the property right substantially
outweighs the other it is unnecessary to consider
whether there were reasonable, effective alterna
tive means for a union to communicate its message
He found that here the Respondent's property right
substantially outweighed the Unions' Section 7
right and dismissed the complaint without consid-
ering whether reasonable alternative means were
available
After the judge's decision issued, the Board de-
cided Jean Country,' which clarified that alterna-
tive means of communication must be considered in
all access cases where a legitimate property interest
and a Section 7 right must be accommodated The
Board further held (slip op at 9-10)
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 reasonable 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
Regarding the property rights, we note that the
property was generally held open to the public but
that the Respondent had a policy of excluding so-
licitors of any kind from its parking lots As the
judge noted, each store was freestanding and sur-
rounded by its own parking lot, although, in the
case of the Overland Park store, an entrance to the
parking lot was shared with other stores On these
facts, we find that the Respondent has a legitimate
and relatively substantial property interest
The Section 7 right involved here was the
Unions' right to advise the public that certain con
tractors working on the Respondent's buildings
paid less than the area wage Although, as the
judge noted, the dispute was between the Unions
and Dolgin's contractors, and the handbilling was
not directed at the Respondent's employees, it did
take place in the same time period that employees
of the primary employers were working on the Re
spondent's premises Thus, there was a greater con-
nection between the Respondent and the activity
than was present in Fairmont, in which the union's
dispute was with a supplier of goods to the em
ployer Further, the handbilling was conducted in a
6 282 NLRB 139 (1986)
7 291 NLRB 11 (1988)
BEST CO
peaceful and limited manner and did not unduly
interfere with the normal operation of the Re-
spondent's business 8 Under the circumstances, we
find that the Unions' Section 7 right, although not
on the strong end of the spectrum of Section 7
rights, is also worthy of protection against substan-
tial impairment
Regarding whether reasonable, effective alterna-
tive means of communication existed, we must ex-
amine the possibility of handbilling from the public
property near the entrances to the stores' parking
lots 9 As the witnesses noted, a car must stop to re-
ceive a handbill The most heavily used entrances
were on busy streets with speed limits of between
25 and 40 miles per hour For a car to stop on a
public street or in the entrance to the parking lot
from the street would create safety hazards for
both the handbillers and the car's occupants This
danger is compounded if a car with a driver and no
passenger attempted to obtain a handbill In that
case, the driver would have to lean to the far side
of his car or the handbiller would have to place
himself within a traffic lane Moreover, in the case
of the Overland Park store, handbillers at the main
entrance would not be able to distinguish the Re-
spondent's customers from those of other stores
who used that entrance, thereby reducing the effec-
tiveness of the handbilling In these circumstances,
we find that there were no safe, or reasonable al-
ternative means available to the Unions to commu
nicate their message
On our evaluation of the Section 7 rights, prop
erty rights, and alternative means of communica-
tion pursuant to our analysis in Jean Country, we
find that the Respondent's property interest would
suffer some impairment if access were granted to
the Unions That impairment, however, would not
be substantial, given that the handbilling resulted in
minimal interference with the Respondent's busi-
ness By contrast, the General Counsel has shown
the absence of reasonable alternative means of
communication and that without access to the Re-
spondent's property, the Section 7 right would be
8 The evidence indicates that the stores experienced little disruption
due to the handbilling Three managers noted that a few employees
came out to see what was going on but this reaction was characterized
by one As they would with any thing out of the ordinary or un
usual they went to the front window to look Regarding the littering
problem mentioned by the judge the one manager who testified about it
stated that most of the handbills ended up in the trash can he placed at
the front of the store With regard to the judge s noting that the custom
ers expressed displeasure to the management the testimony indicates that
the displeasure was intertwined with the store remodeling which caused
merchandise to be moved As the judge stated during the hearing im
plicit within the concept of handbilling there is a certain mini
mal amount of disruption in a customer s normal activity
9 We do not find that this is the exceptional case in which mass media
constitutes a reasonable alternative See Jean Country supra at 13 and 18
fn 18
847
substantially impaired Jean Country, at See also
W S Butterfield Theaters, 292 NLRB 30 (1988)
Accordingly, we find that the Respondent's orders
to the handbillers to leave its property violated
Section 8(a)(1) of the Act
CONCLUSIONS OF LAW
1 The Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act
2 IBEW Locals 124 and 545 , affiliated with
International Brotherhood of Electrical Workers,
AFL-CIO, Laborers International Union of North
America , Local No 579 , and Local No 110 of the
Carpenters District Council of Greater Kansas City
and Vicinity are labor organizations within the
meaning of Section 2 (5) of the Act
3 By ordering the union representatives to leave
its property at St Joseph , North Kansas City, and
Kansas City, Missouri , and Kansas City and Over-
land Park , Kansas , the Respondent interfered with
the exercise of Section 7 rights in violation of Sec
tion 8(a)(1) of the Act
REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order it
to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act 10
ORDER
The National Labor Relations Board orders that
the Respondent , Dolgin 's, A Best Company, St
Joseph, North Kansas City , and Kansas City, Mis
soup , and Kansas City and Overland Park, Kansas,
its officers, agents , successors , and assigns, shall
1 Cease and desist from
(a) Ordering representatives of IBEW Locals 124
or 545, affiliated with International Brotherhood of
Electrical Workers , AFL-CIO, Laborers Interna
tional Union of North Amenca , Local No 579, or
Local No 110 of the Carpenters District Council
of Greater Kansas City and Vicinity not to engage
in peaceful , informational handbilling protected by
the Act at its stores in St Joseph , North Kansas
City , and Kansas City, Missouri, and Kansas City
and Overland Park , Kansas , as long as the activity
is conducted by a reasonable number of persons
and does not unduly interfere with the normal use
of facilities or operation of the business
10 The General Counsel excepted inter alia to the judges failure to
grant a wsitatonal clause In the circumstances of this case we do not
find a visitatonal clause necessary Cherokee Marine Terminal 287 NLRB
1080 (1988)
848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(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 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Post at its stores in St Joseph, North Kansas
City, and Kansas City, Missouri, and Kansas City
and Overland Park, Kansas, copies of the attached
notice marked "Appendix "I I Copies of the notice,
on forms provided by the Regional Director for
Region 17, after being signed by the Respondent's
authorized representative, shall be posted by the
Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to em-
ployees 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 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
I I 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
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 order representatives of IBEW
Locals 124 or 545 , affiliated with International
Brotherhood of Electrical Workers, AFL-CIO,
Laborers International Union of North America,
Local No 579 , or Local No 110 of the Carpenters
District Council of Greater Kansas City and Vicin
ity not to engage in peaceful , informational hand
billing protected by the Act at our stores in St
Joseph, North Kansas City, and Kansas City, Mis-
souri, and Kansas City and Overland Park, Kansas,
as long as that activity does not interfere with the
normal use of facilities or operations of the busi-
ness
We will not in any like or related manner inter-
fere with, restrain, or coerce you in the exercise of
the rights guaranteed you by Section 7 of the Act
DOLGIN'S, A BEST COMPANY
Constance N Traylor Esq for the General Counsel
William W Treverton Esq, of Bellevue Washington for
the Respondent
John T Hurley Esq, of Kansas City Missouri, for
Charging Parties IBEW Local 545 and IBEW Local
124
DECISION
STATEMENT OF THE CASE
PETER E DONNELLY, Administrative Law Judge The
charge in Case 17-CA-13038 was filed by IBEW Local
545, affiliated with International Brotherhood of Electri
cal Workers, AFL-CIO (IBEW Local 545), on 3 July
1986 That charge was amended on 30 July 1986 The
charge in Case 17-CA-13041 was jointly filed by Labor
ers International Union of North America, Local No
579 and Local No 110 of the Carpenters Distract Coun
cil of Greater Kansas City and Vicinity (Laborers Local
579 and Carpenters Local 110, respectively), on 7 July
1986 That charge was amended on 31 July 1986 An
order consolidating cases, consolidated complaint and
notice of hearing issued on 6 August 1986 The charge in
Case 17-CA-13073 was filed by IBEW Local 124 affih
ated with International Brotherhood of Electrical Work
ers, AFL-CIO (IBEW Local 124), on 4 August 1986 An
order further consolidating cases consolidated complaint
and notice of hearing issued on 21 August 1986 consoli
dating all the above cases and alleging that Respondent
violated Section 8(a)(1) of the Act by denying access to
union handbilling at the entrances to various stores since
that handbilling was protected under the publicity pro
viso to Section 8(b)(4) of the Act Answers were timely
filed by Respondent A hearing thereon was held before
me in Kansas City Kansas, on 15 and 16 October 1986
Briefs have been timely filed by the General Counsel
Respondent and Charging Parties Locals 545 and 124
which have been duly considered I
FINDINGS OF FACT
I EMPLOYERS BUSINESS
The Employer is engaged in the operation of retail
jewelry and merchandise stores with stores at various
locations including the stores involved here which are at
St Joseph, Missouri (the St Joseph store) North Kansas
I Transcript corrections have been noted and corrected
BEST CO
City, Missouri (the North Kansas City store), Kansas
City, Missouri (the Kansas City, Missouri store), Kansas
City, Kansas (the Kansas City, Kansas store), and Over
land Park, Kansas (the Overland Park store) During the
past 12 months the Employer, in the course and conduct
of its business operations, purchased and received at each
of the above facilities products, goods, and materials
valued in excess of $50,000 directly from points outside
the State where each is located During the past 12
months, the Employer, in the course and conduct of its
operations above, derived gross revenues in excess of
$50,000 The complaint alleges, the answer admits, and I
find that the Employer is an employer engaged in com
merce within the meaning of Section 2(6) and (7) of the
Act
II LABOR ORGANIZATIONS
The complaint alleges , Respondent at the hearing stip
ulated , and accordingly I fmd that each of the above
named labor organizations are labor organizations within
the meaning of Section 2(5) of the Act
in the alleged unfair labor Practices
A Facts
In June 1986,2 Respondent began remodeling projects
at the five stores in issue All five stores remained open
during the remodeling work
On about 23 June, Roger Brooks, business manager of
IBEW Local 545 in St Joseph, Missouri, having learned
about remodeling work to be done at the Respondent s
St Joseph, Missouri store called Respondents home of
fices in Baltimore and was advised that Summit Electric
Company of Houston, Texas, a nonunion contractor, had
been awarded the bid for the electrical work Brooks
then called Jerry Murphy, business representative for
Carpenters Local 110, and Eugene Browning, business
manager of Laborers Local 579 and they visited the St
Joseph store on or about 24 June, whereupon they satis
feed themselves that the electrical contractor ( Summit)
and the general contractor (F J W Co) were nonunion
On 2 July they all returned to the store for the pur
pose of handbilling customers of Respondent About 1 30
p in, they positioned themselves on the sidewalk outside
the customer entrance and began to handbill customers
entering the store 3 After about 10 minutes Store Man
2 All dates refer to 1986 unless otherwise indicated
3 The handbill read
CUT RATE WAGES ARE NOT
FAIR UNLESS MERCHANDISE
PRICES ARE ALSO CUT RATE
Dolgin s is using out of state contractors to remodel its store and
who pay their employees wages and benefits below the area stand
ards our Union has established for employees in this area We ask for
your support in our protest against substandard wages Please do not
patronize Dolgin s until it publicly promises that all remodeling in its
store will be done using contractors who pay their employees fair
wages and fringe benefits
IF YOU DECIDE TO ENTER THE STORE please express to
the store manager your concern over these substandard wages and
your support of our efforts
849
ager Phillip Bell went outside and asked the handbillers
to remove themselves from the premises because it was
private property After expressing their disagreement
with Bell s position , they did, however, leave the proper
ty Bell also testified that while the handbilling went on,
store employees went to the front window to see what
was happening Regarding the pamphlets, Bell testified
that some of them were being thrown on the floor by
customers and some were being thrown into shopping
carts
A few days later Brooks called Emil Ducolumbier,
business manager for IBEW Local 124 in Kansas City
Missouri, to advise him that Summit was doing remodel
ing work at Respondent's St Joseph, Missouri store and
asked if he knew of any remodeling work being done at
Dolgin's stores in the Kansas City area At that time Du
columbier said that he was not aware of any, but that he
would look into it Ducolumbier instructed his assistants,
business agents of Local 124, to check the Dolgin's
stores in the Kansas City area and was advised by them
that remodeling was being done at the North Kansas
City store by Summit and at the Kansas City, Missouri
store by South Kansas City Electric Company, also a
nonunion electrical contractor, with which Local 124
had prior disputes over the matter of South Kansas City
Electric s failure to pay the wage rates established in
union contracts for the area Ducolumbier testified that,
from information given to him by former South Kansas
City Electric employees, the wage scale was about $7 to
$14 per hour less than the union contract wage scale of
$21 28 per hour
On 30 July, Ducolumbier called a meeting with his
four business agents John Zorn Joe Hoge, Phillip
Mornsey and Phillip Nichols A decision was made to
handbill the main entrances of the four Dolgin s stores in
the metropolitan Kansas City area Ducolumbier told
them that he wanted no confrontations with the police
and that they were to be courteous Each was assigned a
store and was advised to bring one volunteer to assist 4
About 6 30 p in on 31 July, the handbilling began, per
instructions at all four Dolgin's stores 5 Without detail
ing the handbilling activity at each of the stores it suf
fices to say that at these locations handbilling was con
ducted for a short period of time from 10 to 15 minutes
to about 1 hour Representatives of the stores came out
and advised the handbillers that they were on private
property and would have to leave Phillip Barnhart as
We are appealing only to the public-the consumer We are not
seeking to induce any person to cease work or to refuse to make de
liveries
I B E W LOCAL 545
LABORERS LOCAL 579
CARPENTER S LOCAL i io
The accuracy of the handbills contention that the nonunion subcon
tractors pay below the area union contract wages and benefits is not dis
puted and is otherwise supported by the testimony of the Charging Par
ties
4 The parties stipulated that none of the handbillers were employees of
Dolgin s
5 The wording of the handbills was identical to the wording on the
handbill used at the St Joseph Missouri location except that the Union
appeared as IBEW # 124
850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sistant showroom manager at the Overland Park store,
testified that some employees came out to see what was
going on Also, that customers were discarding the hand
bills so he put a trash can just outside the store entrance
According to Barnhart, some customers complained to
him about having to contend with the handbilling There
has been no picketing activity since 31 July and the re
modeling work is substantially completed
Ronald Sextro, district manager for Respondent, testa
feed that Respondent has had an unwritten rule during
the 14 years of his employment which prohibits solicita
tion on Dolgin s premises of any nonemployee organza
tion or activity There had been a lone exception to that
rule which allowed the Salvation Army to solicit kettle
contributions at Christmastime, but that exception was
terminated in 1984 The record discloses no other in
stances where nonemployee solicitation was allowed on
Dolgin s private property 6
B Discussion and Analysis
Historically, when picketing or handbilling occurs on
the premises of an employer, the Board and the courts
have attempted to balance the union s statutory right
under the Act to engage in such activities against the
employer's right to exclude those activities' on his pn
vate property 8
In Giant Food Markets, 241 NLRB 727 (1979), the
union engaged in nonemployee area standards picketing
and handbilling directed at customers of Giant, the tar
geted employer, who shared a privately owned building
with Kresge a neutral employer That building was sep
arated from the street by a private parking lot The pick
eting took place in front of the building 9 The Board
analyzed the strength of the union s Section 7 right and
concluded that because the activity had an area stand
ards objective, and because the intended audience [cus
tomers of Giant] is not readily identifiable until the audi
ence attempts to enter the store such other means of
communication cannot be considered reasonable in rela
tion to their possible effectiveness The Board further
notes that requiring the union to picket and handbill off
the private property would too greatly dilute the
Union s message for it to be meaningful 10
In a recently decided case Fairmont Hotel 282 NLRB
139 (1986) the union was engaged in area standards
handbilling by nonemployees at the main entrance of the
6 Respondent urges that three newspaper articles reporting and criticiz
mg Respondents decision to deny access to the Salvation Army at
Christmastime were relevant and should have been admitted into evi
dence However the only relevant issue was the existence and enforce
merit of the no solicitation policy which is fully supported by direct evi
dence Hearsay newspaper articles reporting and criticizing that decision
were properly excluded
7 In the instant case the right to handbill asserted by the Union is
found in the publicity proviso to Sec 8(b)(4) which excepts from the
prohibitions of Sec 8(b)(4)
publicity other than picketing for the purpose of truthfully advising
the public including consumers and members of a labor organiza
tion that a product or products are produced by an employer with
whom the labor organization has a primary dispute and are distribut
ed by another employer
8 NLRB v Babcock & Wilcox Co 351 U S 105 (1956)
8 Giant Food Markets supra at 729
10 Giant Food Markets supra at 729
Fairmont Hotel The union s dispute was not with the
Fairmont Hotel but with a baker who supplied the hotel
with some of its baked goods The handbills requested
the public not to patronize the hotel until the hotel
stopped doing business with the baker In Fairmont, the
Board was critical of the approach taken in the Giant
case, stating
On the principal ground that the intended audi
ence in Giant was less easily identifiable , the Board
distinguished Babcock & Wilcox which involved or
ganizing activity Thus, while acknowledging that
the relative strength of Section 7 rights is significant
under Hudgens [Hudgens v NLRB 424 U S 507
(1976)], Giants deferral in the final analysis to a test
of available reasonable alternatives suggests that a
union engaging in area standards activity would in
evitably find it easier to establish its right to access
than a union engaged in organizing activity In our
view this is not a mode of analysis contemplated by
the Supreme Court i 1
The Board in Fairmont, supra at 142, then went on to
set out its view in the following language
We believe that in cases such as the instant one
therefore, it is the Boards task first to weigh the
relative strength of each party s claim If the prop
erty owner s claim is a strong one while the Sec
tion 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 compelling, then the Section 7 right will pre
wail Only in those cases where the respective
claims are relatively equal in strength will effective
alternative means of communication become deter
minative Indeed if the Board were to focus primar
ily on the availability of alternative means there is a
substantial risk that relatively strong claims of pn
vate property rights would be required to yield to
relatively weak claims of Section 7 rights Similarly,
it is fully conceivable that utilization of alternative
means as the inevitable litmus test would result in
property rights yielding more frequently to weaker
Section 7 rights such as area standards activity than
to paramount Section 7 rights such as organizing
because of the latter s more easily identifiable audi
ence Such a result is clearly not envisioned by the
Court or required by the Act and has been called
into question by at least one court of appeals
The Board then undertook to analyze the union s Sec
tion 7 rights in comparison to the respondents property
rights and with respect to the hotel's property rights
stated
In sum in excluding persons engaged in handbilling
from the privately owned area connecting the
hotel s front entrance with the private driveway
that serves that entrance Fairmont was asserting a
" Fairmort Hotel supra at 141
BEST CO
substantial private property interest in limiting the
use to which its property was put
With respect to tFe union 's Section 7 rights the Board
stated in Fairmont, supra at 143
In short , the Union 's activity here was carried out
at the property of an employer with which the
Union had no primary dispute , not even an area
standards one, and the employees of which stood to
reap no benefit , not even an incidental one, if the
Union achieved its ultimate objective of improved
wages for the employees of Bakers of Paris
On these facts , the Board concluded
Under these circumstances , the Section 7 rights
being exercised by the Union in its handbilling ac
tivity at the hotel was not at the core of the pur
pose for which the NLRA was enacted Because
in our view the property rights asserted by Fair
mont far outweigh the Section 7 rights asserted by
the Union , we conclude that Fairmont did not vio
late the Act when it barred the Union s agents from
using the privately owned area adjacent to the main
entrance of the hotel as a location from which to
distribute handbills in support of the Union s area
standards dispute with Bakers of Paris Further
more because the rights asserted by Fairmont and
the Union are not relatively equal , we deem it un
necessary to consider whether reasonable alterna
tive means by which the Union could have commu
nicated its message were available [Fairmont, supra
at 143 ]
In evaluating Dolgin s property rights in the instant
case , we see that each of the Dolgin 's stores involved is
a separately located , freestanding building surrounded by
a parking lot with access to surrounding roadways All
of this suggests a degree of privacy not present when
many stores which are located in shopping malls and
parking lots are used by the customers who may be
shopping at any of the other stores in the mail In addi
tion Dolgin s has a rule against solicitation by nonem
ployees on its property which appears to have been con
sistently enforced except for Salvation Army solicitation
at Christmastime , and even that exception was discontin
ued in 1984 In addition the handbilling did create a cer
tarn amount of disruption to Dolgin s normal retail oper
ation Some employees left their work to see what was
happening and some of the customers were disgruntled
by the `inconvenience and expressed their displeasure
to management The pamphlets themselves promote in
851
terference with normal operations by requesting patrons
to express their concern over substandard wages to the
store manager In addition certain littering and cleanup
problems were created by customers discarding their
pamphlets
A review of the Union s Section 7 rights disclose that
under the criteria of Fairmont, these were not so substan
tial This was not union activity engaged in for more
substantial organizational or economic objectives The
handbilling was conducted by nonemployee union orga
nizers, for the purpose of advising customers of Dolgin s
that certain of Dolgin s contractors paid less than union
contract wages This is all that the publicity proviso
allows as limited relief to the general prohibition against
involving neutral employers in disputes between a union
and the employer with whom the union has the dispute
The dispute was between the Union and Dolgin s con
tractors It did not affect any employees of Dolgin's and
would not have affected them even assuming the success
of the handbilling s objectives This is a substantial con
sideration , as the Board points out in Fairmont In these
circumstances , I conclude that Dolgin s property rights
substantially outweigh the Union s rights under the Act
and that Respondent did not violate Section 8 (a)(1) of
the Act by denying access to its private property for the
handbilling in issue and ordering the handbillers off its
premises
Much of the testimony adduced at the hearing con
cerned the matter of access or lack of access by the
Union in its efforts to reach the customers of Respondent
with its message To this end testimony was taken con
cerning access or lack of it to Dolgin s customers
through television radio , newspapers , and billboards
The testimony reflects the numbers reached by the vari
ous media and the expense Much testimony also treated
the possibility of reaching Dolgin 's customers by hand
billing the public entrances to Dolgin 's private parking
lot from the surrounding streets However under the cn
teria established in Fairmont, the question of alternative
means of communication becomes a factor only when
the conflicting rights are relatively equal This being the
case, and having determined under Fairmont, that Doi
gin s property rights is strong and the Union s Section 7
rights less compelling I deem it unnecessary to decide
whether reasonable alternative means of communication
were available for the Union to reach Dolgin s employ
ees
CONCLUSION OF LAW
Respondent has not engaged in any conduct violative
of the Act
[Recommended Order omitted from publication ]