Drexel Co.Download PDFNational Labor Relations Board - Board DecisionsMar 31, 1995316 N.L.R.B. 1103 (N.L.R.B. 1995) Copy Citation 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 Copy with citationCopy as parenthetical citation