Hardee'S Food Systems, Inc.

National Labor Relations Board - Board Decisions

May 31, 1989

294 N.L.R.B. 642 (N.L.R.B. 1989)

642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Hardee's Food Systems, Inc. and Laborers Local
Union No. 204, Laborers' International Union
of North America, AFL-CIO. Case 25-CA-
16331
May 31, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
HIGGINS AND DEVANEY
On March 29, 1985, Administrative Law Judge
Stephen J. Gross issued the attached decision. The
General Counsel and the Respondent filed excep-
tions and supporting briefs, and the Charging Party
filed cross-exceptions and a brief supporting its
cross-exceptions and answering the Respondent's
exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions as modified and explained below, and
to adopt the recommended Order.
We agree with the judge that the Respondent
did not violate Section 8(a)(1) of the Act by deny-
ing the Union access to handbill on the Respond-
ent's private property. We base our decision, how-
ever, on the analysis set forth in Jean Country, 291
NLRB 11 (1988).
Hardee's Food Systems, Inc. (the Respondent)
operates restaurants, including one in Brazil, Indi-
ana, and three in Terre Haute, Indiana . The Re-
spondent engaged Perry Building Contractors
(Perry) as a general contractor for extensive work
on its Brazil restaurant. Charles Toth, a union field
representative, questioned three workers on the job
about their pay and concluded from the responses
that Perry was not paying area standard wages.
The Union picketed and then handbilled at the
Brazil restaurant,2 advising of the substandard
wages. On January 27, 1984,3 representatives of the
Union, the Respondent, and Perry met to discuss
the situation. Although Perry claimed to be paying
prevailing wage rates, the Respondent admitted it
did not have enough money budgeted for the
' The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
To the extent that the Respondent has excepted to some of the judge's
credibility findings, we have carefully examined the record and find no
basis for reversing the findings
2 The Brazil restaurant remained open during the construction work
and the Union handbilled customers entering the restaurant
s All subsequent dates refer to 1984 unless otherwise specified
Brazil work to be done at the prevailing wage
rates. 1. c -
The Union ceased handbilling while it awaited
proof that Perry was paying area standard wages.
Perry did not contact the Union, and the Union re-
sumed handbilling on February 4 at the Brazil site
and also began handbilling at the three restaurants
in Terre Haute, 15 miles from Brazil. The handbills
prepared for the Terre Haute restaurants, designat-
ed by the Respondent as restaurants "number 1,"
"number 2," and "number 3," advised that the Re-
spondent's contractor at the Brazil restaurant was
paying substandard wages and requested people not
to patronize the handbilled restaurant. The hand-
billing, which was done by union employees,
caused no disruption.
A few minutes after handbilling began outside
restaurant number 1, the restaurant' s assistant man-
ager told the union employee to leave the 'premises.
The handbiller refused to leave, the assistant man-
ager warned that he would call the police, the
handbiller persisted in his refusal, and the assistant
manager called the police. When the handbiller re-
fused to leave the premises at police request, the
police arrested him. Toth arrived at the restaurant
during the arrest and informed the police that
union employees were handbilling at, restaurant
numbers 2 and 3. At restaurant number 2, an assist-
ant manager ordered the handbiller to leave and
called the police when the handbiller refused. Al-
though it is not clear if the police arrived at restau-
rant number 2 in response to the Respondent's tele-
phone call or Toth's statement at restaurant
number 1, the handbiller subsequently was arrested.
The police arrived at restaurant number 3, without
request from the Respondent, and arrested the
handbiller when he refused to leave. The assistant
manager spoke with his supervisor by telephone
during the arrest and received his supervisor's per-
mission to allow the police to remove the hand-
biller. The Respondent did not prefer charges
against the handbillers, and the handbillers were
not prosecuted. Handbilling resumed at the three
restaurants on February 5 without interference by
the Respondent.
The judge found that the handbills were truthful
and that the handbilling was covered by the public-
ity proviso of Section 8(b)(4)(ii) of the Act. The
judge found that both the Section 7 right and the
property right were weak and he concluded that
the proper accommodation of the two depended on
"the extent to which alternative means of commu-
nication were available to Local 204." In discussing
alternative means, the judge held that the General
Counsel must prove that using the mass media
would not be an effective alternative means.
294 NLRB No. 48
HARDEE'S FOOD SYSTEMS
Noting the lack of evidence on the feasibility of
using the mass media , the judge held he could not
find the handbilling was protected by the Act, and
he dismissed the complaint.4
The judge 's decision issued before the Board de-
cided Jean Country , above , which provides a
framework to analyze when a union has the right
under Section 7 to handbill on private property.
The Board 's concern in trying to accommodate the
Section 7 right with the property right is "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 ." Id. at 13 . The Board
always considers the existence of reasonable alter-
native means of communication 'and the way in
which those alternative means, or lack thereof,
affect the strength of the rights to be balanced.
We agree with the judge that the Union's Sec-
tion 7 right , without reference to the impact of al-
ternative means, is relatively weak . The Union's
area standards dispute is not with the Respondent,
but with the Respondent 's general contractor, and
the dispute is located in a city 15 miles from the
handbilling sites. And, although the dispute is with
Perry , the Union does not represent or seek to rep-
resent Perry employees.
We also agree with the judge that the Respond-
ent's property right is not compelling .5 Each of the
three restaurants is a free-standing building, and
they are located on large parking lots used by
other businesses . Automobile drivers gain access to
the parking lots by one of several driveway entries
that connect the parking lots to the city streets sur-
rounding them . There are no barriers between the
Respondent 's parts of the parking lots and the por-
tions near other businesses . Patrons can park near
one business and enter another . Customers do not
necessarily enter or exit the parking lot by the
driveway nearest the business they are patronizing.
The Terre Haute population treated the parking
lots as public property . Finally, the handbilling, al-
though done on the Respondent 's property, was in
all other respects nonintrusive. Accordingly, we
4 The judge found it unnecessary to resolve issues he perceived arose
because the handbillers were not employees of the Respondent or Perry
Although nonemployees of the Respondent and Perry , the handbillers'
activity is still protected See Fabric Services, 190 NLRB 540 , 541-542
( 1971) The employee/nonemployee distinction relates to the strength of
the Union 's asserted Sec 7 right See Hudgens v NLRB , 424 U S 507,
521 fn 10 (1976)
5It is clear, however , that the Respondent met the initial burden set
forth in Jean Country , 291 NLRB II at 12 fn 7 ( 1988), of showing that it
possessed a property interest giving it control of the Terre Haute prem-
ises from which the handbillers were removed As the j udge found, the
Respondent owned the three Terre Haute restaurants and was the sole
lessor of the part of the parking lots that surrounded each of the restau-
rants
643
conclude the Respondent 's private property rights
are relatively weak.
With respect to the availability of alternative
means of communication , it is immaterial whether,
as the judge found ,, handbilling from the public
sidewalks near the driveways at the Terre Haute
facilities was a reasonable alternative.6 When, as in
the present case , a union has both a primary target
and secondary targets at numerous locations, a lack
of reasonable means of communication will not
necessarily be found simply on a showing that such
means are not available at all of the properties in
question . Instead , we must examine whether the
Union had a reasonable means of communicating
its protest to customers of establishments doing
business with the primary employer . The Board in
Jean Country , above , made it clear that a union's
own definition of the audience it seeks to address is
not necessarily controlling : "a claim that the
union's intended audience consists of customers of
every establishment that has even a remote connec-
tion to [the primary] target employer will not nec-
essarily warrant access to any and all sites at which
such customers may be found , even if access to pri-
vate property might be necessary to reach custom-
ers at one such site." Id. at 12 . Accord : Homart De-
velopment Co., 286 NLRB 714 (1987).
Thus, the issue is whether it was necessary for
the Union to gain access to the Respondent's pri-
vate property in Terre Haute in order to engage in
its Section 7 activity ultimately directed at the pri-
mary employer , the construction company working
on the Respondent 's private property in Brazil.
The Union had access to the property on which
the construction company was doing the remodel-
ing work, and the remodeled facility remained
open so the Union could (and did) convey its mes-
sage to the Respondent 's customers at that facility.
Under these circumstances , we find that access to
the Brazil property afforded the Union reasonable
means of exercising Section 7 rights on behalf of
employees whose wage standards the construction
company allegedly was undermining.
It is clear that the Union 's pressure against the
Respondent is stronger if it can handbill at numer-
ous locations . However , the Jean Country accom-
modation analysis is based largely on NLRB v.
Babcock & Wilcox Co.,7 which acknowledges the
6 We do not agree , however , with the judge 's finding that the com-
plaint must be dismissed because the record does not permit a finding
that the Union could not reasonably have used the mass media The
Board has noted specifically that "it will be the exceptional case where
the use of newspapers, radio , and television will be feasible alternatives to
direct contact " Jean Country , above at 12 This case is not one of the
rare exceptions in which use of the mass media must be disproved as an
alternative means
' 351 U S 105 (1956)
644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
need for reasonable means of communication, not
the most effective means. Id. at 112. Requiring that
access be granted to numerous properties owned
by a secondary employer, regardless of their con-
nection to the activities of the primary employer, is
not a reasonable accommodation of the conflicting
rights. We do not hold that the General Counsel
would never be able to make a showing that there
are no reasonable means of exercising the Section 7
right absent access to a secondary employer's prop-
erties beyond those connected with the primary
employer. However, there is no such showing
here. •
Accommodating the rights in conflict here pur-
suant to our analysis in Jean Country, we conclude,
in light of the showing that the Union had a rea-
sonable means to engage in its protected activity,
that the degree of impairment to the Section 7
right if access to the Respondent's Terre Haute
properties should be denied is less substantial than
the degree of impairment to the Respondent's
property right if access is granted. Accordingly,
the Respondent did not violate Section 8(a)(1) of
the Act by its exclusion of the Union's agents from
its property.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
John W. Gray, Esq., for the General Counsel.
David M. Vaughn, Esq., of Atlanta, Georgia, for the Re-
spondent.
Edward Fillenwarth Jr., Esq. (Fillenwarth, Dennerline,
Grath & Baird), of Indianapolis, Indiana, for the
Charging Party
DECISION
Introduction
STEPHEN J. GROSS, Administrative Law Judge. The
Respondent, Hardee's Food Systems, Inc, owns and op-
erates numerous Hardee's restaurants throughout the
United States. i
As of February 1984 the Respondent owned three
Hardee's restaurants in Terre Haute, Indiana. On Febru-
ary 4 three members of the Charging Party, Laborers
Local Union No 204 (Local 204 or the Union) stationed
themselves next to entrances to the three Hardee's res-
taurants in Terre Haute and began passing out handbills
that urged consumers not to patronize the restaurants.
' All parties agree that the Respondent is an employer engaged in com-
merce within the meaning of the National Labor Relations Act, (the Act)
and that the Charging Party is a labor organization within the meaning of
the Act
According to the General Counsel, the Respondent
thereupon "caused the arrest" of the handbillers, in' vio-
lation of Section 8(a)(1) of the Act.2
The Respondent denies that it caused the handbillers'
arrests and claims that, in any event, the handbilling was
not entitled to the protection of the Act.3
The Origin of the Dispute
Brazil , Indiana, is about 15 miles from Terre Haute.
The Respondent owns a restaurant in Brazil . In January
1984 the Respondent began extensive construction work
on the restaurant using D.G. Perry Building Contractors,
Inc. as its general contractor. Charles Toth is one of
Local 204's "field representatives." Toth noticed the
construction work and questioned three of the workers
on the job about their pay. One-a teenager-said that
"he thought he was making $4.50 an hour." Another said
that "he was making scale," but did not know what
"scale" was. A third refused to provide any information.
At the time the Union's collective-bargaining contracts
called for wages of $11.63 an hour, not including fringe
benefits. -
Toth concluded that the construction employees at the
site of the Respondent's Brazil restaurant were earning
less than prevailing wage rates. According to Toth, "I
assumed that if, they didn't know what they were getting
paid, they weren't getting paid very much."
Based on Toth's information the Union began picket-
ing the Respondent 's Brazil restaurant , then ' stopped the
picketing and began passing out handbills at the restau-
rant advising of the construction workers' below-par
wages. Neither the Union nor the General Counsel
claims that the Respondent acted unlawfully in respect
to the Brazil handbilling. Indeed, as Toth put it-
We had no problem whatsoever with the customers,
or the police, or the company. In fact, they used to
offer the men coffee and sandwiches at dinner time.
Representatives of the various parties in interest-con-
struction unions, the Respondent, and the contractor-
met on January 27. The Respondent 's regional director
of operations, Jack Hayman, was the Respondent's
spokesman. A union representative voiced • his concern
that the Respondent was using contractors that "weren't
meeting prevailing wage rates." Perry (the owner of the
general contractor for the Brazil work) denied the alle-
gation, claiming that the pay and other benefits of the
employees on the job were comparable to those called
for by Local 204's collective-bargaining contracts.
Hayman initially took the same position but later said
that the Respondent did not "have the money budgeted"
to pay for the Brazil work to be done at prevailing area
wage rates. Hayman went on to urge the Union to stop
the Brazil handbilling on the ground that the Respondent
2 Complaint, par 5(d)
3 The Union's charge was filed on April 2, 1984 The complaint issued
on May 21, 1984 The hearing in the matter was held before me in Terre
Haute on June 28, 1984 The General Counsel and the Respondent have
filed briefs, and both of those parties have made unopposed motions to
correct the transcript in various respects Those motions are hereby
granted
HARDEE'S FOOD SYSTEMS
planned extensive construction work in Terre Haute and
that the Respondent would do it "paying the employees
prevailing wage rates."
As of the close of the meeting Hayman was under the
impression that while there were to be some further dis-
cussions between union officials and Perry, the dispute
had been resolved. But Local 204's representatives, who
had asked for proof of Perry's claim about the construc-
tion workers' pay, thought that the agreement was that
the Union would "give them [the Respondent and its
contractors] a few days to substantiate that they were
paying some comparable to our wage package" at
the Brazil site, and that the Union would stop its hand-
billing in Brazil only for those few days unless Perry
documented his claim.
Local 204 did temporarily stop its handbilling. As it
turned out, however, there was no further contact be-
tween Perry and Local 204. The Union accordingly re-
sumed its handbilling at the Respondent's Brazil restau-
rant on February 4. No one claims that the Respondent
behaved unlawfully in respect to the resumed handbilling
at the Brazil restaurant.
The Handbilling in Terre Haute
Sometime between the end of the January 27 meeting
and February 4 Local 204's officials decided that if Perry
could not prove that the Brazil construction workers
were receiving prevailing wage rates, the Union would
expand the handbilling to Terre Haute. The reason for
that decision: because of the expected construction in
Terre Haute; and because the Union wanted to increase
the pressure on the Respondent to have its Brazil con-
tractor pay wages comparable to prevailing area levels
The handbilling in Terre Haute began on the same day
it resumed in Brazil-February 4. The Terre Haute
handbills read:
NOTICE TO THE PUBLIC
The Central Wabash Valley Building and Con-
struction Trades Council advises you that the re-
modeling of the Brazil Hardee's restaurant . . is
being performed by Perry Construction Company.
This work is being performed principally through
the use of non-union labor employed under sub-
standard wage scales and working conditions.
We believe that employment of non-union labor
under such sub-standard wage scales and conditions
affects all working men andwomen in this area by
undermining already established benefits
The Central Wabash Valley Building and Con-
struction Trades Council believes you have the
right to know these facts.
You can voice your protest against Hardee's anti-
worker policies by refusing to patronize this estab-
lishment.
Thanks for your support !!
Central Wabash Valley Building
and Construction Trades Council
The Handbillers' Behavior
645
Three members of Local 204 were given the job of
distributing handbills in Terre Haute-one person at each
of the Hardee's restaurants. Each of the three stood
about 6 to 8 feet from an entrance to the restaurant. At
those locations the handbillers were well inside the pe-
rimeters of the Respondent's property According to the
undisputed evidence, each of the handbillers quietly and
politely gave a handbill to each prospective Hardee's
customer willing to take one. The handbilling caused no
disruptions of any kind. None of the handbillers littered,
prevented any deliveries or pickups, or caused any Har-
dee's employee to refrain from carrying out or perform-
ing any services.4
The Respondent's Response to the Handbilling
Restaurant 1. As it happened, the first response of res-
taurant personnel to the handbilling occurred at the res-
taurant the Respondent designated restaurant 1. A few
minutes after the arrival of the handbiller, one of the res-
taurant's "assistant managers" came out of the restaurant
to order the handbiller "to leave the premises."5 When
the handbiller refused to move, the assistant manager
warned that he was going to call the police. The hand-
biller again refused to move, and the assistant manager
did call the police. According to the testimony of the as-
sistant manager's superior (who was not present at the
occurrence), the police were asked only to move the
handbiller "off the lot to the sidewalk." Upon their arriv-
al the police demanded that the handbiller leave the Re-
spondent's property. When the handbiller refused, the
police arrested him.
Restaurant 2. At restaurant 2, as at restaurant 1, an as-
sistant manager ordered the handbiller to leave. When
the handbiller refused, the assistant manager called the
police (without notifying the handbiller that that was
being done). The police arrived soon after the call. But it
is not clear whether it was the assistant manager's call
that brought them there: A union official present at the
arrest of the handbiller at restaurant 1 had advised the
police of the activities at restaurants 2 and 3, and the
police did act on that information. In any case, the hand-
biller was arrested after he refused to move off the Re-
spondent's property
Restaurant 3. No one associated with the Respondent
asked the handbiller at restaurant 3 to leave, and there is
no evidence that anyone associated with the Respondent
asked the police to come to restaurant 3. Nonetheless the
police did arrive at the restaurant-presumably as a
result of the union official's remarks at restaurant 1 about
the presence of handbillers at restaurants 2 and 3. The
police once again asked the handbiller at restaurant 3 to
° The only evidence in any way to the contrary was hearsay testimony
by a member of Respondent's management who said that he was told
that Hardee's personnel at two of the restaurants received "a couple of
customer complaints about people passing out handbills " Tr 155
5 The evidence does not show whether the assistant managers of Re-
spondent's restaurants are supervisors or employees But the Respondent
does not contend that the assistant managers are not its agents for present
purposes
646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
move from the Respondent's property and arrested the
handbiller when he refused.
Just as the police made the arrest an assistant manager
of the restaurant reached his supervisor by telephone and
said that "the police had shown up there and that they
had [the handbiller] in the [police] car and were ready to
take him away." The assistant manager went on to ask
"should they take him away?" The supervisor responded
affirmatively.6 (The record is silent about whether the
police had asked that question of the assistant manager
or, if they had not, whether they nonetheless would have
refrained from booking the handbiller if the supervisor
had said that the handbiller should be released.)
The Respondent did not prefer charges against the
handbillers, and the charges were subsequently dismissed.
The handbillers resumed their activity at the Terre
Haute restaurants on February 5 and continued it for a
month without any further interference by the Respond-
ent.
The Import of Respondent's Calls to the Police
It is a violation of the Act for an employer to order
employees off its property if the employees are engaged
in protected activity and have the right to be on the
property. E.g., Seattle-First National Bank, 243 NLRB
898 (1979). And it is clear that at restaurants 1 and 2 the
Respondent did order the handbillers to leave. But the
complaint does not allege that those demands were viola-
tions of the Act. Rather, the complaint alleges only that
the Respondent "caused the arrest" of the handbillers.
Action by the Respondent did result in the handbillers'
arrests at restaurant 1 and, perhaps, at restaurants 2 and
3. But it is not altogether clear that an employer's re-
quest of police to remove persons engaged in protected
activity from the Employer's property is, without more,
a violation of the Act. (The Board generally looks for
something more than a simple request for police action in
order to conclude that a call to the police constitutes un-
lawful interference, restraint, or coercion.)?
This decision will nonetheless assume that if the hand-
billers were engaged in protected activity, the Respond-
ent's calls to the police would have constituted unlawful
action. As discussed below, however, my recommenda-
tion is that the Board conclude that there has been no
showing that the handbillers' activity was protected.
Did the Union Violate Section 8(b)
Actions that violate Section 8(b) are not protected by
the Act even if those actions would otherwise be pro-
tected by Sections 7 and 8(a). H.R. Rep. No. 510, 80th
Cong., 1st Sess. 39 (1947); see also Newspaper Production
Co. v. NLRB, 503 F.2d 821, 826 (5th Cir. 1974); Team-
sters Local 707 (Claremont Polychemical), 196 NLRB 613,
9 Tr 177-178
7 See Clear Lake Hospital, 223 NLRB I , 7-8 (1976), Payless, 162 NLRB
872 fn 1 (1967) The complaint alleges that the Respondent caused the
"detention " of the handbillers as well as their arrest, and it is clear that
the police did detain the handbillers (by jailing them) The General
Counsel sought to show that the police treated the handbillers harshly
But I sustained objections to the receipt of such evidence on the ground
that the General Counsel did not contend that the Respondent sought to
have the police treat the handbillers that way
628 (1972). Cf. Clear Pine Mouldings, 268 NLRB 1044
(1984). e .
Under Section 8(b)(4)(ii)(B) it is an unfair labor prac-
tice for a union or its agents "to threaten, coerce, or re-
strain any person engaged in commerce . . . where .. .
an object thereof is . . . forcing or requiring any person
... to cease doing business with any other person
... ." Local 204's purpose in handbilling outside the
Hardee's restaurants in Terre Haute was to so coerce the
Respondent. 11
That is not the end of the matter, however, since the
scope of Section 8(b)(4)(ii)(B) is limited by a proviso that
reads:
nothing contained in [Section 8(b)(4)(ii)(B)] shall be
construed to prohibit publicity, other than picket-
ing, for the purpose of truthfully advising the
public, including consumers . . . that a product or
products are produced by an employer with whom
the labor organization has a primary dispute and are
distributed by another employer, as long as such
publicity does not have an effect of inducing any in-
dividual employed by any person other than the pri-
mary employer in the course of his employment to
refuse to pick up, deliver, or transport any goods,
or not to perform any services, at the establishment
of the employer engaged in such distribution.
If the handbilling was covered by the proviso it was not
prohibited by Section 8(b)(4)(ii)(B). But the Respondent
argues that for two reasons the Terre Haute handbilling
was not covered by the proviso: (1) the handbills were
not "truthful"; and (2) the handbills did not involve any
"product" that was "distributed" by the Respondent.
The Handbilling and the Proviso to ection
8(b)(4)(ii)(B)
The truthfulness of the handbills. The handbills stated
that the construction work in Brazil was "performed
through the use of . . . labor employed under sub-stand-
ard wage scales and working conditions." The Respond-
ent claims that the General Counsel had the burden of
proving the accuracy of that statement. It is not clear
that that is so. But assuming that the General Counsel
did have that burden, my conclusion is that that burden
was carried. The evidence shows that, according to one
of the employees at the Brazil site, his wages were far
below the wages received by employees covered by
Local 204 contracts; that Perry failed to take advantage
of an opportunity the Union gave it (after the January 27
meeting) to show that the employees involved in the
construction work at the Brazil restaurant were receiving
wages comparable to area standards; and that during the
course of the January 27 meeting Hayman virtually ad-
mitted that the Brazil construction workers were being
paid less than prevailing wage rates. Finally, "the provi-
so does not require that a handbiller be an insurer that
the content of the handbill is 100 percent correct."
8 See Tr 140 and Florida Building Trades Council (DeBartolo Corp),
273 NLRB 1431 (1985), Electrical Workers IBEW Local 662 (Middle
South Broadcasting), 133 NLRB 1698, 1705 (1961)
HARDEE'S FOOD SYSTEMS
Teamsters Local 537 (Lohman Sales), 132 NLRB 901, 906
(1961).9
Did Respondent "distribute" any product that was `pro-
duced" by its construction contractors. On its face, the pro-
viso to Section 8(b)(4)(ii)(B) applies only to "products"
that are "produced" by the primary employer and "dis-
tributed" by the secondary employer. Yet the only con-
nection that the Respondent had with Perry was that
Perry performed construction work at the Brazil restau-
rant. Respondent contends that under the circumstances
"it is incongruous to say that Perry was a producer of a
`product or products' of Hardee's within the meaning of
the proviso, merely because the remodeling construction
work at Brazil may have inured to the benefit of that
particular restaurant." i o
The Respondent's major premise is accurate. the
"produce" "distribute" language in the proviso does limit
the proviso's scope Edward J. DeBartolo Corp. v. NLRB,
463 U.S. 147 (1983). However (1) for purposes of the
proviso, a contractor's construction services are a "prod-
uct" that is "distributed" by the employer for whom the
contractor provided the services (Operating Engineers
Local 139 (Oak Construction), 226 NLRB 759 (1976);
Plumbers Local 142 (Piggly Wiggly), 133 NLRB 307
(1961)); and (2) the proviso covers the handbilling even
though the handbilling occurred 15 miles from the site of
the dispute since even where the relationship between
the primary employer and secondary employer is one of
construction contractor and user of the contractor's serv-
ices, the proviso does not impose a geographical limita-
tion on handbilling. Sheet Metal Workers Local 54
(Sakowitz, Inc.), 174 NLRB 362 (1969).
In sum , the handbilling was covered by the proviso to
Section 8(b)(4)(ii)(B) and accordingly did not violate
Section 8(b) in any respect. That, however, does not end
the inquiry into whether the handbilling merits the pro-
tection accorded by Section 8(a) of the Act. One ques-
tion in this respect stems from the fact that the hand-
billers conducted the handbilling while on the Respond-
ent's property.
Accommodating the Section 7 Rights of the
Handbillers and the Respondent's Private Property
Rights
It is "the task of the Board . . . to resolve conflicts be-
tween Section 7 rights and private property rights, `and
to seek a proper accommodation between the two."'
Hudgens v. NLRB, 424 U.S. 507, 521 (1976) (quoting
Central Hardware Co. v. NLRB, 407 U.S. 539, 543
(1972)). Given the facts here at issue there are four fac-
tors to consider in arriving at the "proper accommoda-
tion" that Hudgens demands of the Board: (1) the nature
of the Section 7 rights involved; (2) the nature of the pri-
vate property rights; (3) the degree to which the hand-
billing intruded on private property rights; and (4) the
9 The Respondent argues that the Terre Haute handbills were decep-
tive and inaccurate in their reference to "Hardee 's anti-worker policies"
since the Union's only concern was with the wages paid by the Respond-
ent's contractors , not by the Respondent itself But argument is not per-
suasive The handbills make it clear that the Union's only dispute with
the Respondent concerned the wages paid by Perry
10 Br at 19
647
extent to which alternative means of communication
were available to Local 204. Each of those factors will
be considered below.
The Nature of the Section 7 Rights Involved
It is reasonably clear that some kinds of Section 7
rights are entitled to greater weight when being balanced
against the rights of owners of private property than are
other types of Section 7 rights E.g., Hudgens v. NLRB,
supra;'' NLRB v. Babcock & Wilcox Co., 351 U.S. 105,
113 (1956). And given the appropriateness of gradations
as between various kinds of Section 7 activities, it is evi-
dent that the handbilling at issue here is entitled to rela-
tively little weight.
For one thing, the Union's dispute was with Perry, not
(directly) with the Respondent. i 2 For another, the
Union did not even have a direct connection with
Perry-it did not represent Perry's employees and did
not seek to.13 Thirdly, the persons who did the handbill-
ing were not shown to be employees who were, or could
be, affected even indirectly by the substandard wages of
the construction employees at the Brazil site. (The com-
plaint alleges, and the evidence shows, only that the
handbillers were "representatives" of Local 204.)14
Fourthly, if geography ought to play any role in the
weighing process, then the strength of the Union's right
to handbill in Terre Haute is diminished by the 15 miles
between Terre Haute and Brazil (assuming that the focus
of the Union's concern was the Brazil construction work,
as specified in the handbills). And finally, if the Union's
real concern was the upcoming construction in Terre
Haute, then the strength of the Union's case is dimin-
ished by the fact that the handbills did not say so and
because it was by no means clear that the Respondent
planned to, pay less than area standards for the Terre
Haute construction work-the Union found out about
the not-yet-started construction, after all, in the course of
a discussion in which the Respondent said that its Terre
Haute contractors would pay wages meeting area stand-
ards.
The Degree to Which the Respondent Treated its
Property as "Private"
At the time of the picketing each of the Hardee's res-
taurants in Terre Haute was located in its own free-
standing building on a large parking lot used by several
different establishments The neighbors of Hardee's res-
11 "The locus" of the accommodation between Sec 7 rights and pri-
vate property rights "may fall at differing points along the spectrum de-
pending on the nature and strength of the respective § 7 rights and pri-
vate property rights asserted in any given context" 424 U S at 522
12 In Seattle-First National Bank , supra , the Board emphasized that the
"union was engaged in primary, economic strike activity against the pri-
mary employer" in holding that handbilling at the entrance of a restau-
rant located on the 46th floor of a bank building was entitled to the Act's
protection notwithstanding the handbillers ' intrusion onto the property of
the owner of the building
13 See Sears, Roebuck & Co v San Diego District Council of Carpenters,
436 U S 180, 206 fn 42 (1978)
14 See Hudgens, supra, 424 U S at 522 (referring to the possible rel-
evance of the fact that the Sec 7 activity at issue there was conducted by
employees of the primary employer, rather than "by outsiders")
648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
taurant 1 were a beer retailer and a rental office. Har-
dee's restaurant 2 was on the same lot as a Waffle House
restaurant a boys' club, a union hall, and a pizza restau-
rant. Hardee's restaurant, 3 shared a parking lot with an
automobile tire store and a large shopping center. 1 5 The
Respondent was the sole lessor of the part of the lot sur-
rounding each of the three Hardee's restaurants But no
wall or fence separated the Respondent's parts of the
parking lots from the parts of the lots owned or leased
by the other establishments. As one witness described the
lot used by Hardee's restaurant 2 and its neighboring es-
tablishments: "It's all blacktop, it looks like one huge
parking lot. There's no curbs, or no barricades, or any-
thing." 16
The record indicates that to at least some extent con-
sumers and, indeed, the Terre Haute population at large,
treated the parking lots on which the Hardee's restau-
rants were situated, including that part of each lot leased
by the Respondent, as public property. For example,
boys' club users sometimes park on the part of the lot
leased by Hardee's restaurant 2. And the users of any
one of the establishments on any of the lots often enter
or leave via the property of another of the establish-
ments.
The Intrusiveness of the Employees' Activity
While the handbilling was done on the Respondent's
property, in all other respects the activity was just about
as nonintrusive as handbilling can get. There was only
one handbiller at each of the restaurants, even though at
restaurants 1 and 3 there were two entrances, and at all
three restaurants the customers had the option of using
drive-through service instead of entering of the restau-
rant. The handbillers did not enter the Respondent's
buildings; in fact they did not even stand immediately
next to the buildings. And the handbillers' behavior was
wholly nondisruptive.
Did the Union Have Feasible Alternative Means of
Communicating
Handbilling from the perimeter of the Respondent's prop-
erty. The General Counsel proved that Local 204 could
not feasibly have passed out handbills from public prop-
erty bordering the restaurants. As contended by the
General Counsel, the weather, the layout of the parking
lots, the routes customers use to get to the restaurants,
the narrow width of the public land adjoining the park-
ing lots, and the traffic on the streets next to the parking
lots mean that perimeter handbilling would have been in-
effective and unsafe, and would have presented "the like-
lihood of . . . enmeshing neutral employers" in the dis-
pute.17
Use of mass media. The record shows that Local 204's
officials considered, but rejected, the use of mass media
to publicize the Union's dispute with the Respondent.
But apart from that, there is no evidence on whether the
15 Hand-drawn maps of the various parking lots are included in the
record as G C Exhs 3, 4, and 5
16Tr Ill.
17 Giant Food Markets , 241 NLRB 727, 729 (1979)
use of mass media by the Union would have been feasi-
ble.
Accommodating Section 7 Rights and the
Respondent's Property Rights-Conclusion
The Section 7 rights exercised by the Union were cer-
tainly not the type that would justify access to private
property if an effective alternative were available. On
the other hand, the Respondent's property rights in re-
spect to the land around its Terre Haute restaurants had
been sufficiently diluted, and the alternative of perimeter
handbilling was sufficiently unworkable, to lead to the
conclusion that the Union had the right to conduct the
handbilling-unless the use by the Union of mass media
advertising was a reasonable alternative.
One question that raises is whether the use of mass
media advertising may under any circumstances be
deemed a reasonable alternative to handbilling.
The use of the mass media as an alternative to hand-
billing was considered in Montgomery-Ward & Co., 265
NLRB 60 (1982). There the Board held that, as a matter
of law, mass media should not be deemed to be a feasible
alternative to handbilling.'$ In Montgomery-Ward, more-
over, the private property on which the handbillers
stood was less public-like than here; and the handbillers
there intruded to a greater extent on the respondent's
property (two handbillers were stationed at each en-
trance).
But the object of the Montgomery-Ward handbilling
was very different from the Union's here. The hand-
billers there were striking employees of a manufacturer
whose goods were sold in the handbilled Montgomery-
Ward store. The handbills referred to the strike against
the manufacturer and asked that the public "do not buy
[the manufacturer's] products sold at this store." And the
Board focused on that object in concluding that the re-
spondent's efforts to remove the handbillers from its
property violated the Act even though there was no
showing that the use of mass media would have been in-
feasible. 19
In contrast, the handbills here asked consumers not to
patronize the Respondent's restaurants because of a dis-
pute with another employer (Perry) involving another
restaurant 15 miles away. While the Union had been told
that the Terre Haute restaurants were going to undergo
construction work, the Union was not engaged in any
dispute with the Respondent about that work. Nor did
the Union have any dispute about anything being sold in
those restaurants. Rather, the Union's purpose, as reflect-
ed in the handbills' message, was to reduce the Respond-
ent's business generally. In these circumstances there is
18 See 265 NLRB at 60, 68 The Fifth Circuit took that same position
in Hudgens v NLRB, 501 F 2d 161, 168-169 (1974) But in view of the
Supreme Court' s subsequent reversal of the Fifth Circuit' s decision, that
position would not appear to have precedential value
Is The rationale of Tree Fruits suggests that the handbilling in Mont-
gomery- Ward was akin to the handbilling of a primary employer NLRB
v Teamsters Local 760 (Tree Fruits), 377 U S 58 (1964) See the discus-
sion of this point by Judge Anderson in Montgomery-Ward, 265 NLRB at
65-66 The Board's opinion in the Montgomery- Ward decision cites Tree
Fruits and, in addition, relies on a case involving the handbilling of a pri-
mary employer (Seattle-First, supra)
HARDEE'S FOOD SYSTEMS
no obvious basis for concluding that Local 204 could not
feasibly have used the mass media as its means of com-
municating its message . I accordingly conclude that the
proper accommodation between the Section 7 rights here
at issue and the Respondent's property rights cannot be
determined absent consideration of the feasibility of the
use by the Union of the mass media as an alternative to
handbilling.
The problem that remains is that the record contains
no evidence on whether the use of the mass media would
have been a reasonable alternative for the Union. And
that brings up the question of who had the burden of
proof on this issue.
It is clear that in cases of "trespassory organizational
solicitation by nonemployees . . . . the union has the
burden of showing that no other 'reasonable means of
communicating . . . exists . . " Sears, Roebuck, supra,
436 U.S. at 405. And in Plymouth Park Shopping Center,
266 NLRB 481 (1983), which involved issues similar to
those at hand here, the Board seems to have reached a
similar conclusion. That case, like this one, involved an
allegation that an employer unlawfully prevented a union
from handbilling on the employer's premises. In Plym-
outh Park, however, the Respondent did not file an
answer and the case accordingly was decided on the
basis of the complaint and the General Counsel's Motion
for Summary Judgment. The Board granted the motion,
but one member dissented (Member Hunter).
According to the dissent, the General Counsel "failed
to include in his complaint allegations a vital element of
his prima facie case; i e, that the Union had no reasona-
ble alternatives for communicating its message."20 The
majority, in response, did not dispute that proof of lack
of alternatives is part of the General Counsel 's prima
facie case. Rather, the majority took the position that-
Since Respondent has not filed an answer to the
complaint or to the Notice To Show Cause, it is
therefore deemed to have admitted that it engaged
in the foregoing conduct and that its conduct was
unlawful. In these circumstances, we must assume
that no reasonable alternatives existed for communi-
cation of the Union's message and that an accom-
modation between employee rights and Respond-
ent's property rights required Respondent to permit
the subject handbilling.2 i
20 266 NLRB at 483
21 Id at 482, fn 1 The Board has since held that all elements of a
prima facie case must be pleaded in a complaint in order to permit sum-
mary judgment, even where no answer is filed Stine Scovil Construction
Co, 269 NLRB 465 (1984)
649
In sum, Plymouth Park appears to stand for the propo-
sition that, in a case like the one at hand, the General
Counsel must prove lack of alternative means of commu-
nication unless the respondent admits wrongdoing.22
Since the Respondent here not only denied wrongdoing
but specifically raised the issue of mass media advertising
as an alternative means of communication, my conclusion
is that the General Counsel had the burden of proof on
the issue. And since the record does not permit a finding
that Local 204 could notreasonably have used the mass
media, I cannot conclude that the handbilling was pro-
tected by the Act. I will accordingly recommend that
the complaint be dismissed.
Other Issues
Even had the record shown that the intrusion onto the
Respondent's property was justified, it is not entirely
clear that the evidence would have made out a violation
of Section 8(a)(1). The issue that remains stems from the
fact that the handbillers were not shown to have been
"employees," within the meaning of the Act (except,
possibly, as employees of the Union), and because the
evidence gives no indication that any employee ever
learned of the arrests. The question thus raised is wheth-
er employees are interfered with, coerced, or restrained
in the exercise of their rights if representatives of their
union are arrested while engaged in handbilling on behalf
of the employee members of the union, but the employ-
ees gain no knowledge of those arrests and the arrests do
not prevent the Union from completing the planned
handbilling. 23 In view of the dismissal of the complaint
on another ground, however, the issue need not be re-
solved here.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed24
ORDER
The complaint is dismissed in its entirety.
22 The complaint here alleges that "the Union had no reasonable alter-
natives for communicating its message to customers of the Respondent "
23 In several comparable cases the Board specifically referred to the
presence of employees E g, Montgomery Ward, supra, Seattle-First,
supra, Giant Food Markets, supra On the other hand , there is language in
those cases and in Plymouth Park Shopping Center, supra, that can be read
to suggest that employee knowledge or involvement is unnecessary The
conclusions of law in Plymouth Park, Seattle-First, and Giant Food make
no reference to "employees "
24 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses