Midway Ford Truck Center, Inc

National Labor Relations Board - Board Decisions

Oct 11, 1984

272 N.L.R.B. 760 (N.L.R.B. 1984)

f 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Midway Ford Truck Center, Inc and International
Association of Machinists and Aerospace Work
ers District Lodge No 71 Case 17-CA-10253
11 October 1894
DECISION AND ORDER
BY MEMBERS ZIMMERMAN HUNTER AND
DENNIS
i
On an unfair labor practice charge filed on 20
,March 1981 by the Union International Associa
tion of Machinists and Aerospace Workers District
Lodge No 71 the General Counsel of the National
Labor Relations Board issued a complaint on 21
September 1981 against the Respondent Midway
Ford Truck Center Inc alleging that it has violat
ed Section 8(a)(1) of the National Labor Relations
Act Copies of the complaint and notice of hearing
were served on the Respondent The Respondent
filed a timely answer denying the commission of
any unfair labor practices and asserting certain af
firmative defenses
On 28 May 1982 the parties jointly moved the
Board to transfer the instant proceeding to the
Board without benefit of a hearing before an ad
ministrative law judge and they submitted a pro
posed record consisting of the formal papers and
the parties stipulation of facts with attached exhib
its On 29 July 1982 the Board issued an order
granting the motion approving the stipulation and
transferring the proceeding to the Board The Gen
eral Counsel and the Respondent filed briefs
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel ,
On the entire record in this case the Board
makes the following findings
I JURISDICTION
The Respondent is a Missouri corporation en
gaged in the retail and nonretail sale and service of
trucks at its facility located at 7601 N E 38th
Street Kansas City Missouri The Respondent in
the course and conduct of its business operations
within the State of Missouri annually purchases
goods and services valued in excess of $50 000 di
rectly from sources located outside the State of
Missouri Accordingly we find that the Respond
ent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and
that the Union is a labor organization within the
meaning of Section 2(5) of the Act
1 All dates refer to 1981
II THE UNFAIR LABOR PRACTICES
A Issue
The issue presented is whether the Respondent s
removal of the Union s informational picket signs
stationed on the Respondent s premises violated
Section 8(a)(1) of the Act
B Facts
The Respondent operates a truck sales leasing
and service facility located on the northwest
corner of N E 38th Street and Randolph Road in
Kansas City Missouri The facility consists of a
building surrounded by a paved parking lot The
parking lot is bordered by a grassy area approxi
mately 30 to 40 feet wide abutting Randolph Road
Similarly between the parking lot and N E 38th
Street is a grassy area approximately 15 to 20 feet
wide There are three entrances to the Respond
ent s facility on N E 38th Street and two entrances
on Randolph Road The Randolph Road entrance
farthest from 38th Street is used exclusively for
access to the employees parking lot All other en
trances are used primarily by customers
The Respondent s employees have never been
represented by a labor organization On 11 Novem
ber 1980 the Union commenced informational
picketing at the Respondent s facility with picket
signs which then and at material times later read
NOTICE
TO THE PUBLIC ONLY
Please be advised
That Midway Ford Truck Center
Inc Is Non Union
Please Do Not Patronize
District No 71i
IAMAW
Teamsters Local No 552
Because there were no sidewalks bordering the
facility the Union s nonemployee picketer Michael
Kelly spent the greatest portion of his time
through 12 March 1981' sitting in or leaning
against his car which was parked on Randolph
Road across the street from the Respondent s facili
ty Kelly affixed picket signs to the front side and
back of the car On a few occasions Kelly walked
in the street next to the curb or on the grass no
more than 3 to 4 feet from the curb between two
of the customer entrances on 38th Street
On 12 March Kelly was joined by the Union s
business representative John Hams Kelly picketed
on the grass next to the Randolph Road curb
272 NLRB No 116
MIDWAY FORD TRUCK CENTER 761
while Hams picketed on the grass next to the 38th
Street curb In addition the picketers stationed a
picket sign mounted on a wooden stick and an
chored by a concrete cinder block next to the
Randolph Road customer entrance for 1 hour
Hams and Kelly removed the sign when they
ceased picketing for the day
On 13 March Kelly again posted a stationary
picket sign on the grass next to the Randolph Road
customer entrance He then returned to his car An
hour later the Respondent s general manager Don
Ahnger removed the sign and returned it to Kelly
with the statement that he did not want Kelly s
sign on the property This marked the first time
that the Respondent s agents had noticed a picket
sign affixed to its property For the remainder of
the day Kelly carried a picket sign between Ran
dolph Road and the 38th Street customer en
trances walking on the grass no more than 3 to 4
feet from the curb
On 14 March Kelly posted stationary signs ap
proximately 2 feet from the curb at the Randolph
Road and 38th Street entrances respectively
Ahnger had them removed and returned to Kelly
The picketer remained in his sign bedecked car or
in ambulatory protest for half a day
On 17 March the Respondent s attorney told the
Union that the Respondent did not object for
safety reasons to the picketer walking on the Re
spondent s property instead of on the street but did
object to placing any stationary picket signs on its
property The attorney also told the Union that he
had advised the Respondent to remove such signs
On the same day Kelly placed another sign on the
Respondent s property It was removed and re
turned to him
From 17 March until 14 April Kelly parked his
car at curbside on Randolph Road on the same side
of the street as the Respondent s facility The car
still had three picket signs affixed to it On 14
April Kansas City traffic control posted no park
mg signs on the Respondent s side of Randolph
Road Thereafter Kelly parked the car on the op
posite side of Randolph Road and continued occa
sionally to walk on the Respondent s grass while
carrying a picket sign On 20 July Kelly ceased all
forms of picketing at the Respondent s facility On
8 September Kelly resumed picketing in the same
manner described above On 15 September Kelly
again placed two signs on the Respondent s proper
ty and the Respondent removed them
C Contentions of the Parties
The General Counsel contends that the Respond
ent violated Section 8(a)(1) of the Act by removing
the Union s stationary picket signs The General
Counsel argues that the Union s picketing on the
Respondent s property was protected by Section 7
of the Act because it was done with the Respond
ent s permission was limited in nature was the
only effective means of communicating its message
to the public and was not in any way destructive
of the Respondent s property The General Coun
sel maintains that the stationary picket signs were
an integral part of the Union s ambulatory picket
ing and entitled to the same protection 2
The Respondent argues that it could lawfully
prohibit the Union s posting of stationary picket
signs on the Respondent s property under the prin
ciples set forth in NLRB v Babcock & Wilcox Co
351 U S 105 (1956) because the Union through
ambulatory picketing had other reasonable means
of communicating its message to the public The
Respondent also contends that it made a reasonable
accommodation with the Union when it allowed
the Union to picket on its property for safety rea
sons Finally the Respondent asserts that because
the Union had alternative means of promulgating
its message there is no need to reach the question
whether the posting of the stationary signs on its
property constituted picketing For these rea
sons the Respondent contends that the complaint
should be dismissed
D Discussion of Law and Conclusions
The Supreme Court in Babcock & Wilcox supra
and in Sears Roebuck & Co v Carpenters 436 U S
180 (1978) set forth the criteria for accommodating
conflicts between an employer s private property
rights and nonemployee trespassory activity to pro
mote employees Section 7 rights The Court stated
in Babcock & Wilcox that an employer may bar
nonemployee union access to its property unless
the union has sustained its burden of showing
either that there were no other reasonable means
available to communicate its message or that the
employer s bar discriminated against the union In
Sears the Court said that the burden imposed on
the union to demonstrate the absence of reasonable
alternative means of communication was a heavy
one 3
Assuming arguendo that unattended stationary
picket signs constitute protected picketing within
the meaning of the Act we find that the signs here
were not an integral feature of the Union s ambula
tory picketing and therefore do not require a single
evaluation of trespassory impact The picket signs
were generally unattended as Kelly sat for most of
2 There is neither allegation nor evidence that the Respondent s re
moval of the Union s signs constituted discriminatory practice with re
spect to the posting of any signs on the Respondent s private property
3 436 U S at 205
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the time in his car or as he (and Hams on 12
March) occasionally conducted ambulatory picket
mg from one to another of the Respondent s sever
al customer entrances Similarly the Respondent s
condonation of ambulatory picketing on the fringe
of its property clearly did not extend to permitting
the posting of picket signs in the same area The
Respondent justifiably distinguished between the
two channels of communication here in viewing
the posting of unattended picket signs as a greater
intrusion on its property rights than ambulatory
picketing along the edge of the property The
latter was permitted for reasons of safety No such
reason applies to the posting of the signs In these
circumstances permission for the one does not give
license to the other
Finally there has been no showing that reasona
ble alternatives to the posting of unattended picket
signs were unavailable to the Union On the con
trary the Union had the ability to communicate its
message to the general public by continuing Kelly s
ambulatory picketing on the Respondent s prem
ises by increasing the number of picketers and by
displaying the picket signs on Kelly s car while
parked on the street opposite to the Respondent s
facility Further as previously noted there is no al
legation that the Respondent s bar discriminated
against the Union
Accordingly the Respondent s removal of the
posted picket signs was lawful and we shall dis
miss the complaint 4
ORDER
The complaint is dismissed
In agreeing with his colleagues that the Respondent did not violate
the Act by removing the stationary picket signs from its property
Member Hunter relies solely on the General Counsel s failure to establish
that the Union lacked reasonable alternative means of conveying its mes
sage to the relevant audience Member Hunter notes that the fact that the
Respondent permitted ambulatory picketing on its property is irrelevant
to the question whether It could prohibit unattended stationary picket
signs except Insofar as it might indicate that the Union had alternative
means of communicating its message