Drexel Co.

National Labor Relations Board - Board Decisions

Mar 31, 1995

316 N.L.R.B. 1103 (N.L.R.B. 1995)

1103
316 NLRB No. 168
DREXEL CO.
1 On March 29, 1990, Administrative Law Judge Martin J. Linsky
issued the attached decision. The Respondent filed exceptions and a
supporting brief, and the General Counsel filed a brief in opposition
to the exceptions.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 On February 14, 1992, the Board advised the parties that it
would accept supplemental briefs discussing the impact of Lechmere
on this case. On February 28, the General Counsel filed a motion
to remand the case to the Regional Director for dismissal of the
complaint. On April 28, the Board denied the General Counsel’s mo-
tion. Thereafter, the General Counsel, the Respondent, and the
Charging Party filed supplemental briefs. In addition, the American
Federation of Labor and Congress of Industrial Organizations (AFL–
CIO) and the National Retail Federation each filed a brief as amicus
curiae. 3 A representative handbill is appended to the judge’s decision.
Drexel Company, a Division of Plywood Minnesota,
Inc. and Milwaukee & Southeast Wisconsin
Carpenters District Council. Case 30–CA–10550
March 31, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND COHEN
The issue presented here is whether the Respondent
violated Section 8(a)(1) of the Act by prohibiting non-
employees from communicating the Union’s area
standards protest by distributing handbills to customers
at the private property entrance to the Respondent’s
store.1 Applying the analysis of nonemployee access
issues set forth in Jean Country, 291 NLRB 11 (1988),
the judge found that the Respondent acted unlawfully.
While the case was before the Board on the Respond-
ent’s exceptions, the Supreme Court issued its decision
in Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), hold-
ing that the Board’s balancing test in Jean Country, as
applied to nonemployee union organizers, was incon-
sistent with controlling Court precedent.2
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order. For the reasons fully set forth in Leslie
Homes, Inc., 316 NLRB 123 (1995), we hold that Bab-
cock & Wilcox Co., 351 U.S. 105 (1956), as reaffirmed
in Lechmere, applies to nonemployee area standards
activities. Under those cases, a union organizer cannot
ordinarily gain access to an employer’s property for
the purpose of organizing the employer’s employees.
The organizer can gain access only in the exceptional
circumstance where the employees are reasonably ac-
cessible only through trespassory means. Applying that
approach to the instant case, the General Counsel has
failed to prove that the targets of the Union’s
handbilling, the Respondent’s customers, were reason-
ably accessible only through trespassory means. Ac-
cordingly, the Union was not entitled to access. We
need not, and do not, reach the issue of whether access
would be required if the customer targets of the
handbilling were reasonably accessible only through
trespassory means.
The Respondent, Drexel Company, sells carpeting
and other floor coverings to the public at three stories
in the metropolitan area of Milwaukee, Wisconsin.
These floor products are generally advertised and sold
with installation included. The Respondent sub-
contracts all of its installation work. Unique Carpet In-
stallation, Inc. (Unique) performs a substantial portion
of the subcontracted work. Unique’s only office is in
its owner’s home. Unique’s employee-installers report
to the Respondent’s stores each morning to receive
their assignments and materials.
The Union lost an election held among a unit of
Unique’s installers in September 1988. On about De-
cember 10, 1988, the Union began a handbilling cam-
paign at the Respondent’s three stores, including the
store located on Blue Mound Road in the town of
Brookfield. The handbills advised the public that the
Respondent used a nonunion carpet installer that paid
substandard wages. The handbill also urged a con-
sumer boycott of the Respondent’s stores.3 After con-
sultations with the Union and Milwaukee city officials,
the Respondent permitted handbilling at the entrance
of two stores. Its refusal to grant similar access to the
Blue Mound Road store has given rise to this case.
The store in dispute is a freestanding structure sepa-
rated from Blue Mound Road by a parking lot and a
driveway which transects a 6- to 7-foot deep, open
drainage ditch. The Respondent owns the building, the
parking lot, and the driveway up to a northern property
line which borders the roadside edge of the drainage
ditch. The distance from the parking lot through the
driveway to the property line is approximately 16–18
feet. The driveway is 42-feet wide, sufficient for two
lanes of traffic. A lamp post stands at each corner of
the driveway entrance into the parking lot.
Blue Mound Road is a heavily traveled four-lane di-
vided highway with a speed limit of 45 mph. Only ve-
hicles traveling east on Blue Mound Road can turn
(right/south) into the Respondent’s driveway. There is
no stop sign, traffic signal, or turn lane at the driveway
entrance, but there is a paved shoulder lane alongside
the thoroughfare. After the handbilling began, the Re-
spondent generally maintained a line of concrete
bumpers separating its parking lot from the lot of an
adjacent retail facility. The Respondent’s driveway was
therefore the only point of direct vehicular access to its
store. Between 25 and 30 potential customers a day
enter the Respondent’s facility during the week; closer
to 100 potential customers enter on weekend days. In
1104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The judge did not refer to this uncontroverted testimony in his
decision.
5 Hudgens v. NLRB, 424 U.S. 507, 522 (1976); Sears, Roebuck &
Co. v. San Diego County District Council of Carpenters, 436 U.S.
180, 206 (1978).
addition, approximately 50–60 employees go daily to
the store.
The handbillers at the Blue Mound Road store ini-
tially stood on the Respondent’s private property
alongside the driveway at its intersection with the
parking lot. The Respondent, with the assistance of
local police, ousted the handbillers from the storefront
location. On two occasions, Brookfield Chief of Police
Harlan Ross told the handbillers that they would be ar-
rested if they did not move from the storefront to the
parking lot entrance. The handbillers complied and re-
turned to the parking lot entrance. According to Dennis
Penkalski, the Union’s business representative, ap-
proximately 75 percent of those handbilled at the store-
front accepted the handbills, while 25 percent of those
handbilled at the driveway entrance accepted them.
For 13 months after being denied access to the Blue
Mound Road store entrance, the handbillers distributed
handbills from positions on the Respondent’s property
at, or a few feet north of, the lampposts at the drive-
way’s intersection with the parking lot. Unless giving
handbills to drivers, the handbillers stood on the shoul-
der area between the driveway and the drainage ditch.
There is no evidence that any official of the Respond-
ent or the police told the handbillers to stand at those
exact locations. Chief Ross testified that he offered to
‘‘let them exceed on to the Drexel property by 20
more feet, which seemed to relieve, or you know, sort
of take a little bit more of that pressure off of having
an accident.’’ Union Agent Penkalski testified that
Chief Ross told the handbillers to stand ‘‘approxi-
mately’’ where the driveway meets the parking lot.
The handbillers did not regularly move any farther into
the lot, but Penkalski told them that, if an inbound car
stopped beyond the lampposts, they would be allowed
to proceed into the parking lot to deliver the handbill.
On 4 occasions during the 13 months of handbilling
at the driveway entrance, handbillers had to jump out
of the way to avoid being hit by cars. Backups of in-
coming traffic were rare, due in part to the handbillers’
practice of waving vehicles through to avoid such situ-
ations. The judge personally viewed the driveway and
concluded that it would be safer to handbill at the
storefront than at the driveway handbilling site, specifi-
cally because a driver stopping a car at that site would
fear being hit by a following car. Chief Ross likewise
testified that it would be safer to handbill at the store-
front. He also testified that it would be relatively safer
to handbill 20 feet farther into the parking lot than the
site at which the Union’s agents were then hand-
billing.4
After reviewing the evidence, the judge observed
that it was ‘‘obvious that the better place to handbill’’
was at the storefront entrance rather than at the parking
lot entrance. Applying the balancing test of Jean
Country, he further found that the Respondent’s prop-
erty right was ‘‘weak’’ and the Union’s area standards
right under Section 7 was ‘‘significant.’’ Finally, he
found that there were no reasonable alternative means
for the Union to communicate its message.
In Lechmere, the Supreme Court held that Jean
Country impermissibly recast as a ‘‘multi-factor bal-
ancing test’’ the general rule of Babcock & Wilcox
permitting an employer to prohibit nonemployee dis-
tribution of union organizational literature on its prop-
erty. 502 U.S. at 538. Babcock’s holding, as reaffirmed
in Lechmere, is that Section 7 does not protect non-
employee union organizers except in the rare case
where ‘‘the inaccessibility of employees makes inef-
fective the reasonable attempts by nonemployees to
communicate with them through the usual channels.’’
Id. Thus, ‘‘it is only where such access is infeasible
that it becomes necessary and proper to take the ac-
commodation inquiry to a second level, balancing the
employees’ and employers’ rights.’’ Id. (Emphasis in
original.)
The General Counsel, the Respondent, and amicus
National Retail Federation contend that the Court’s in-
terpretation of Babcock in Lechmere applies to the
nonemployees in this case who were seeking access to
the Respondent’s private property storefront to engage
in area standards handbilling. The General Counsel ar-
gues, however, that the Respondent’s denial of access
to that location was unlawful even under the Bab-
cock/Lechmere analysis because no reasonably effec-
tive alternatives existed for the Union to communicate
its message to the public. The Respondent and the Na-
tional Retail Federation contend that the General
Counsel has failed to prove a lack of reasonable alter-
native means. The Union and amicus AFL–CIO argue
that the Babcock/Lechmere analysis involved organiza-
tional activity and should not apply to protected area
standards activity. They contend that more liberal ac-
cess principles should govern where, as here, a union
is acting on behalf of employees whom it already rep-
resents. Further, they argue, even if the Bab-
cock/Lechmere analysis does apply, the Respondent
violated the Act because the Union had no reasonable
alternatives to communicating with the Respondent’s
customers at the Blue Mound Road storefront entrance.
In Leslie, supra, the Board considered the impact of
Lechmere on nonemployee area standards activity.
After reviewing Lechmere and related Court prece-
dent,5 the Board concluded that the Court intended the
Babcock accommodation analysis to apply in
nonorganizational settings. Accordingly, the general
rule is that an employer may prohibit nonemployees
1105DREXEL CO.
6 We therefore do not rely on the judge’s assessment of the rel-
ative weight of the employee and employer rights in this case.
7 As in Leslie, we assume, without deciding, that the Lechmere
analysis affords the possibility of an exception permitting access to
private property for area standards activity if a union can prove that
an employer’s customers are not reasonably accessible by
nontrespassory methods. Compare Sears, supra at 206 (‘‘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, it would be unprotected in most instances.’’); but
cf. John Ascuaga’s Nugget v. NLRB, 968 F.2d 991, 998 (9th Cir.
1992) (inaccessibility exception to the rule that an employer need
not accommodate nonemployee organizers does not apply to at-
tempts to communicate with the general public).
For a complete discussion of Member Cohen’s position on the ap-
plication of Lechmere to area standards activity, see Leslie Homes,
supra at fn. 18.
8 Cf. Little & Co., 296 NLRB 691, 693 (1989) (union had no rea-
son to believe other locations in the respondent’s facility were avail-
able alternatives for picketing in light of respondent’s objection to
picketers presence on private property generally); W. S. Butterfield
Theatres, 292 NLRB 30, 33 fn. 9 (1988) (union had no reason to
believe respondent would have permitted handbilling in theater’s
parking lot in view of fact that it wanted pickets to move to the pub-
lic street).
9 The fact that the Respondent permitted limited access to its pri-
vate property for the Union’s area standards handbilling does not
prove waiver by condonation of its right under the general rule of
Babcock to prohibit handbilling at other locations on the property.
See Midway Ford Truck Center, 272 NLRB 760, 762 (1984) (con-
donation of ambulatory picketing on the fringe of the employer’s
property did not extend to permitting posting of stationary pickets
in the same area).
from gaining access to its private property to engage
in area standards activities. No balancing of employee
and employer rights is appropriate unless the union can
first demonstrate that it lacks reasonable access to the
employer’s customers outside the employer’s prop-
erty.6
We turn then to the question of whether the General
Counsel has proven that the Union had no reasonable
alternative means of communicating with Drexel con-
sumers.7 In Lechmere, the Court stated that the Bab-
cock exception requiring access to private property by
nonemployee organizers applied only in rare situations
where a union confronts ‘‘unique obstacles’’ to
nontrespassory communications, as when the location
of a plant and the living quarters of employees ‘‘iso-
lated [them] from the ordinary flow of information that
characterizes our society.’’ 502 U.S. at 539–541. The
Court emphasized that the union’s burden of proving
the exception is a heavy one, which cannot be satisfied
‘‘by mere conjecture or the expression of doubts con-
cerning the effectiveness of non-trespassory means of
communication.’’ Id. at 540.
In assessing the availability of reasonable alternative
means in this case, the judge focused only on the alter-
natives of mass media advertising and of handbilling
at the driveway location actually used by the Union.
He found the former to be prohibitively expensive and
the latter to be both unsafe and ineffective. We need
not pass on these findings. We find that the General
Counsel has failed to prove that the Union was unable
to communicate with the Respondent’s customers by
handbilling at locations on the Respondent’s property
where the Union was permitted to handbill.
At no time did the Respondent attempt to exclude
handbilling entirely from its private property. Not only
did it permit storefront handbilling at its other two
stores, but also for 7–10 days before the attempt to
handbill at the Blue Mound Road storefront, and for
13 months after this attempt, the Respondent permitted
handbilling in the area of its private driveway entrance
into its private parking lot. Furthermore, neither the
Respondent nor the police officials who acted at its re-
quest instructed the handbillers to stand on the drive-
way shoulder north of the lampposts and adjacent to
the drainage ditch. Most significantly, Chief Ross en-
couraged the handbillers to move as much as 20 feet
farther into the parking lot than the site at which they
were then handbilling. The Respondent had cooperated
with police officials in permitting handbilling at the
entrances of its other two stores, and it did not dis-
agree with Chief Ross as to the location of handbilling
at the Blue Mound Road store.8 Notwithstanding this,
the handbillers chose not to move to this available al-
ternative location.9
There is no proof that handbilling from positions 20
feet farther into the parking lot would be unsafe. Po-
lice Chief Ross specifically testified that handbilling
there would be ‘‘relatively safe.’’ Any dangers at the
actual handbilling site posed by rapidly turning cars
and by handbillers’ proximity to the open drainage
ditch would not exist at the alternative site. Further-
more, evidence concerning the light daily volume of
traffic into the parking lot and the rarity of backups
due to handbilling at the Union’s chosen site warrants
the inference that there would be no significant traffic
hazard posed by handbilling at the alternative site. En-
tering vehicles would have additional time to decel-
erate, and traffic in either direction would have more
room to make any necessary maneuvers around
handbillers and cars stopped to receive handbills.
With respect to the effectiveness of the Union’s
message, handbillers at the Respondent’s exclusive
parking lot entrance faced no significantly greater
problem of customer identification than they would
have encountered at the storefront. While some of the
Respondent’s potential customers might have parked in
the adjacent store’s lot and walked across the concrete
bumper dividing it from the Respondent’s lot, the Gen-
eral Counsel did not introduce any evidence showing
that this actually happened to any significant degree.
Consequently, the overwhelming majority of the Re-
spondent’s potential customers would pass by hand-
billers at the parking lot entrance.
1106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 ‘‘Access to employees, not success in winning them over, is the
critical issue—although success, or lack thereof, may be relevant in
determining whether reasonable access exists.’’ Lechmere, 502 U.S.
at 540–541.
The record also shows that customers in cars were
capable of receiving handbills offered to them by
handbillers at the driveway entrance, where at least 25
percent of them did accept the proffered handbills. It
is reasonable to infer that there would be a higher
handbill acceptance rate at an alternative handbilling
site 20 feet farther into the Respondent’s parking lot,
where neither the handbillers nor drivers would have
any safety concerns about stopping cars. Union Agent
Penkalski testified that approximately 75 percent of
potential customers accepted handbills at the storefront.
An extreme disparity in handbill acceptance rates at
different locations may be relevant to a consideration,
in conjunction with other facts, of whether a union has
any reasonable opportunity to communicate at the
locus of lower handbill acceptance.10 Even the 25-per-
cent acceptance rate at the driveway entrance, how-
ever, standing alone or in comparison with the higher
acceptance at the storefront, does not, in itself, prove
that customers in vehicles were ‘‘inaccessible’’ in the
sense contemplated by Babcock and Lechmere. In each
of those cases, the organizing union was only able to
secure the names and addresses of, and send mailings
to, approximately 20 percent of the employer’s em-
ployees.
Finally, we note that the continuous handbilling at
the driveway location for over 13 months suggests the
Union itself did not regard handbilling there as ineffec-
tive. It was merely less effective than at the storefront;
or, as stated by the judge, the storefront was ‘‘the bet-
ter place’’ to handbill. Concededly, the Union’s pres-
sure against the Respondent and Unique would be
stronger if it handbilled in front of the entrance to the
Respondent’s store. The Court warned in Lechmere,
however, that the narrow exception to Babcock’s rule
does not apply merely because nontrespassory access
to employees may be ‘‘cumbersome or less than ideal-
ly effective.’’ 502 U.S. at 540.
Based on the foregoing analysis, we find that the
General Counsel has failed to meet the heavy burden
of proving unique obstacles to the Union’s attempts to
communicate its area standards message to the Re-
spondent’s customers. Accordingly, we conclude that
the Respondent did not violate Section 8(a)(1) of the
Act by denying the Union access to handbill at the en-
trance to its Blue Mound Road store. Accordingly, we
shall dismiss the complaint.
ORDER
The complaint is dismissed.
CHAIRMAN GOULD, concurring.
I join in the dismissal of the complaint in this case.
See my additional comments set forth in my concur-
ring opinion in Leslie Homes, 316 NLRB 123 (1995).
John A. Corrigall and Benjamin Mandelman, Esqs., for the
General Counsel.
William A. Denny and Daniel J. Miske, Esqs., of Elm Grove,
Wisconsin, for the Respondent.
John J. Brennan, Esq., of Milwaukee, Wisconsin, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On July
18, 1989, Milwaukee & Southeast Wisconsin Carpenters Dis-
trict Council (the Union) filed a charge against Drexel Com-
pany, a Division of Plywood Minnesota, Inc. (Respondent).
Thereafter, on August 31, 1989, the National Labor Rela-
tions Board, by the Regional Director for Region 30, issued
a complaint which alleges that Respondent violated Section
8(a)(1) of the National Labor Relations Act (the Act) when
it caused union handbillers under threat of arrest to cease
handbilling at Respondent’s store entrance.
Respondent filed an answer in which it denied that it vio-
lated the Act.
A hearing was held before me in Milwaukee, Wisconsin,
on January 19, 1990.
Based upon the entire record in this case, to include
posthearing briefs submitted by the General Counsel and Re-
spondent and my observation of the witnesses and their de-
meanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, with stores at several locations
within the State of Wisconsin, including the facility involved
herein at 19355 Blue Mound Road in Brookfield (Waukesha
County), Wisconsin, has been engaging in the sale of floor
and wall coverings, and other products.
Respondent operates its Blue Mound Road Store from a
building and surrounding parking area which it owns.
Respondent admits, and I find, that it is now, and has been
at all times material, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the Union is now and
has been at all times material, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Issue Presented
The only issue is whether Respondent violated Section
8(a)(1) of the Act when it caused union handbillers, who
were engaged in ‘‘area standards’’ handbilling, under threat
of arrest by the police to cease handbilling at Respondent’s
store entrance. The dispute between the Union and Respond-
1107DREXEL CO.
ent is over area standards and the object of the handbilling
is to protect area standards. In short, this is an access case
and the answer requires a balancing between the Section 7
rights of employees and the property rights of Respondent.
The leading case in this area is the Board’s decision in Jean
Country, 291 NLRB 11 (1988). I decide this issue against
Respondent. Therefore, I will recommend the posting of a
notice, a cease and desist order, and recommend that Re-
spondent be ordered to permit union handbillers to handbill
at the entrance to Respondent’s store on Blue Mound Road.
Needless to say such handbilling should be done in a manner
which does not impede customers and employees of Re-
spondent or its subcontractors from entering or leaving the
store.
B. Factual Background and Discussion
The parties stipulated the following:
1. Respondent subcontracts the installation of carpeting
and floor covering to various installers, including
Unique Carpet Installation, Inc. (hereinafter Unique).
Respondent has no contract or written agreement with
Unique for the performance of such service, other
than a listing of current prices charged by Unique for
services it offers to Respondent. Respondent performs
no carpet or floor covering installation work. Re-
spondent subcontracts such work at the will and dis-
cretion of both Drexel and the installers.
2. Respondent actively advertises its products, including
carpeting for sale to the general public in the Milwau-
kee metropolitan area. With regard to carpeting, Re-
spondent advertises that the price ‘‘(i) includes instal-
lation and lifetime padding.’’ In said advertising, no
mention is made regarding who will or does perform
the installation work.
3. Some price tags used and displayed by Respondent
for carpeting state that the price includes ‘‘padding
and professional installation.’’ No mention is made
regarding who will or does perform the installation.
Drexel also sells carpeting without including padding
or installation. The price tags for such carpeting do
not include the above-mentioned notation.
4. A petition for representation (NLRB Form 502) was
filed with Region 30 of the National Labor Relations
Board on July 29, 1988, by the Milwaukee and
Southeast Wisconsin Carpenters District Council
seeking to represent certain employees of Unique
Carpets, Inc. (later amended to Unique Carpet Instal-
lations, Inc.) A Stipulated Election Agreement (NLRB
Form 652) was executed by the parties and approved
by the Regional Director on August 19, 1988. On
September 9, 1988, an election was held in a unit
consisting of:
All full-time and regular part-time carpet installers,
semi-skilled installers and helpers employed by the
Employer; but excluding office clerical employees,
managerial employees, guards and supervisors as de-
fined in the Act.
Four of the ballots were challenged. A Hearing on
Challenged Ballots was held on November 4, 1988.
The National Labor Relations Board, by order dated
May 5, 1989, ordered that two of the four challenges
be overruled and that those two ballots be counted.
On May 17, 1989, said ballots were counted and a re-
vised Tally of Ballots (NLRB Form 4168) issued
which showed the results of the election as seven
votes for the petitioner and eight votes against. On
May 23, 1989, the results of the election were cer-
tified by the Acting Regional Director (NLRB Form
4280).
5. On or about December 10, 1988 the Milwaukee and
Southeast Wisconsin Carpenters District Council start-
ed a handbilling campaign at the Respondent’s facil-
ity on Bluemound Road, in Waukesha County (Town
of Brookfield). A representative copy of the handbills
used is attached as Exhibit A.
6. After approximately 7–10 days of handbilling activity
in the vicinity of the entrance to Respondent’s park-
ing lot, the handbillers shifted their handbilling activ-
ity to the Respondent’s privately owned store en-
trance which is connected to Respondent’s privately
owned parking lot. Upon the insistence of Respond-
ent, and with the assistance of the police, the
handbillers again took station in the vicinity of the
entrance to Respondent’s parking lot.
7. Until August 1989, the handbillers generally stood on
the East side of the parking lot entrance.
8. On or about August 15, 1989, the handbillers, with-
out request from Respondent, generally moved their
activities to the West side of the parking lot entrance.
9. Respondent has no documents concerning any cus-
tomer complaints or comments regarding the
handbilling at the entrance to its store or at the en-
trance to its parking lot at Respondent’s facility on
Bluemound Road, Waukesha County (Town of
Brookfield).
The handbill itself is attached as Appendix A to my deci-
sion. The ‘‘nonunion carpet installer’’ referred to in the
handbill is, of course, Unique.
At the hearing certain additional facts were disclosed. Re-
spondent, which has three stores in the Milwaukee area pays
between $150,000 to $175,000 per year to advertise on tele-
vision. It pays $19,000 for a large billboard which it moves
periodically around the Milwaukee area. It pays $6500 every
other month to advertise on radio. A full page ad in the Mil-
waukee Journal cost $10,000. The Union handbilled at all
three stores in the Milwaukee area but there is a dispute only
about the handbilling at the Blue Mound Road store.
Between 25 and 30 potential customers a day enter Re-
spondent’s Blue Mound Road store during the week and on
the weekends closer to 100 potential customers a day will
enter the store.
Unique does about $500,000 worth of business a year for
Respondent. It is far and away Respondent’s biggest single
subcontractor. All of Respondent’s carpet installers are non-
union. Unique’s employees report to Respondent’s store on
Blue Mound Road in the morning and receive their assign-
ments and the carpet they are to install. Unique’s only other
office is in the private home of its owner.
During the union organizing campaign among Unique’s
employees, which is referred to above, Gerry Boschwitz, the
president and CEO of Respondent, not only addressed a
1108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Tr. 103 states:
Q. At the door would be safer?
A. Oh, yes, definitely.
meeting of Unique’s employees and urged them to vote
against the Union but also distributed, just 1 week before the
election, to each Unique employee a letter urging the em-
ployees to vote against the Union.
Beginning in December 1988 the Union handbilled at the
Blue Mound Road store. It was still handbilling as of the
time of the hearing in mid-January 1990.
The handbillers have been refused permission under threat
of arrest to handbill at the front entrance to Respondent’s
building, which has one customer entrance. Local Chief of
Police Harlan Ross had been asked by Respondent on two
occasions to keep handbillers away from the front entrance
and down at the parking lot entrance.
The handbillers have been required to handbill at the en-
trance to the parking lot which is right off Blue Mound
Road. The handbilling takes place approximately 100 feet
from the front entrance of the store. Blue Mound Road is a
divided four-lane road going east and west. There is also a
shoulder lane in each direction, the posted speed limit is 45
miles per hour. It is heavily traveled in one direction during
rush hour in the morning and heavily traveled in the other
direction during evening rush hour.
Vehicles on Blue Mound Road traveling in an easterly di-
rection only can enter the parking lot. Vehicles traveling
west have to go beyond the store and circle back in order
to enter Respondent’s parking lot.
There is no traffic light at the entrance to Respondent’s
parking lot. Therefore, vehicles are moving at a fast clip as
they begin to turn into the parking lot. As soon as you turn
into the parking lot there are ditches (6 or 7 feet deep) on
each side of the 16-foot driveway into the lot. Because of the
presence of concrete bumper stops placed in Respondent’s
parking lot by Respondent those persons driving into Re-
spondent’s parking lot are able to park only in Respondent’s
parking lot unless they drive over the concrete bumper stops.
Once in the parking lot the people in the vehicle are able to
walk to other nearby stores to include a Best Buy, right next
door to Respondent’s facility. Needless to say people parked
in Best Buy’s parking lot are able to walk to Respondent’s
store without going anywhere near the entrance to Respond-
ent’s parking lot.
It is obvious that the better place to handbill is at the front
entrance to Respondent’s place of business rather than at the
entrance to the parking lot for the following reasons:
1. When handbillers handbill at the parking lot entrance
they are standing by open ditches which are 6 or 7 feet deep.
2. On two occasions Union Representative Dennis
Penkalski has seen handbillers have to jump out of the way
to avoid being hit by cars turning into the parking lot off
Blue Mound Road, one of whom was a retiree who had to
jump into the ditch behind him and these two incidents are
in addition to those recounted in reasons 5 and 6 below.
3. While 75 percent of the customers offered handbills at
the front entrance to the store accepted the handbill only 25
percent accepted the handbill at the parking lot entrance.
4. Chief of Police Harlan Ross who threatened handbillers
at the front entrance with arrest for either disorderly conduct
or trespassing admits that the chances of an accident are
greater with handbillers present at the parking lot entrance
than if there were no handbillers and that handbilling at the
front door would be safer.1
5. Handbiller Michael Pesch testified that one time in
order to avoid being hit by a car he had to jump into the
ditch behind him.
6. Handbiller Anthony Bouchlas had to jump out of the
way also to avoid being struck by a car while handbilling at
the parking lot entrance.
7. During the 13 months of handbilling to include some
handbilling at the front door not one single customer of Re-
spondent complained about the handbilling.
Respondent’s main reason, I suspect, in refusing permis-
sion to the Union to handbill at the front entrance to the
store is that more customers will take the handbill which
states quite clearly that the customer is being asked not to
patronize the store. I might add at this juncture that at the
request of the General Counsel, with no objection from Re-
spondent, I personally viewed the area in question in the
company of counsel for both the General Counsel and Re-
spondent. During the viewing I was a passenger in a car that
drove into the parking lot from Blue Mound Road and saw
the ditches on either side of the 16 foot or so driveway into
the parking lot.
It seems clear to me that anyone driving into the parking
lot would or should hesitate before stopping and having the
passenger window rolled down, if it was not already, to ac-
cept a handbill. The reason for this is that the driver would
or should be concerned about being hit in the rear by a car
following the driver into the parking lot. This is one more
reason why it would be safer to have the handbilling done
at the front entrance to the store.
I am not unmindful of Respondent’s property rights. How-
ever, this is not a private home or high security area. It is
rather a business that encourages the general public, even
though it has and enforces a no-solicitation rule, to visit its
showroom and make purchases. In other words, Respondent
has not made it its business to keep its property off limits
to the general public. As the Board noted in Thriftway Super-
market, 294 NLRB 173 (1989), a property interest is weak-
ened by the fact that the public is invited onto the property.
Permitting handbilling to occur at the front entrance will not
damage any of Respondent’s property, e.g., there is no mani-
cured lawn that will be stood on by handbillers as a result
of handbilling at the front entrance. The property right ad-
vanced by Respondent is weak.
It goes without saying that peaceful area standards
handbilling by a union urging a customer boycott of a busi-
ness which uses nonunion subcontractors is legal provided
the contents of the handbill are truthful. DeBartolo Corp. v.
Florida Gulf Coast Building Trades Council, 485 U.S. 568
(1988). Area standards handbilling is not as significant a
Section 7 right as organizational activity or handbilling to
protest an unfair labor practice but it is significant. Jean
Country, supra.
1109DREXEL CO.
The Union clearly had a basis in fact for all the claims
it makes in its handbill. Respondent’s carpet installers are all
nonunion. The biggest installer by far being Unique which
as noted earlier has done approximately $500,000 a year in
business for Respondent. Uncontradicted testimony from
Union Business Representative Dennis Penkalski, and former
Unique employees Ricky Barnhardt and Michael Pesch es-
tablish that Unique pays wages and benefits substantially less
than union contractors and that Unique has no formal train-
ing program for carpet installers as does the union contrac-
tors. The handbill is truthful.
In balancing the Section 7 rights of employees against the
property rights of Respondent, it is clear that the property
rights of Respondent must yield.
Under the Board’s decision in Jean Country, supra, I am
required to take into account the availability of reasonable al-
ternative means for the Union to get its message across with-
out interfering with Respondent’s property rights. I note that
in the 13 months of handbilling between December 1988 and
the hearing in January 1990 the Union spent approximately
$20,000. It has a budget of $200,000 to cover this type of
activity but out of that $200,000 it must pay the salaries of
its business agents and all other organizing expenses to in-
clude legal fees. The cost of radio ads, television ads, bill-
boards, and newspaper ads is prohibitively expensive and,
therefore, not a reasonably available alternative. Lechmere,
Inc., 295 NLRB 92 (1989). Those costs are set out above.
The Union’s audience is customers of Respondent. A media
campaign would reach at prohibitive cost an audience far
larger than the one the Union has in mind. The audience the
Union wants to get its message to is reachable by handbilling
at the store and at the store the safe place to do that is not
at the entrance to the parking but at the front entrance to the
store. The Union does not seek to handbill inside the store.
Respondent’s property rights inside the store would be great-
er than employee Section 7 rights. This is not the kind of
exceptional case where the Board will put the burden of the
cost of a media campaign on a union. Red Food Stores, 296
NLRB 450 (1989). As the Board noted in Jean Country,
supra, it is only the exceptional case where the use of news-
papers, radio, and television will be feasible alternatives to
direct contact.
CONCLUSIONS OF LAW
1. The Respondent, Drexel Company, a Division of Ply-
wood Minnesota, Inc., is, and has been at all times material,
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Milwaukee and Southeast Wisconsin Carpenters District
Council is, and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of the Act.
3. When it caused union handbillers under threat of arrest
to cease handbilling at the front entrance to its store on Blue
Mound Road, Respondent violated Section 8(a)(1) of the
Act.
[Recommended Order omitted from publication.]
1110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(for handbill picture)
APPENDIX A