Target Stores

National Labor Relations Board - Board Decisions

Feb 9, 1989

292 N.L.R.B. 933 (N.L.R.B. 1989)

TARGET STORES
Target Stores, Division of Dayton-Hudson Corpora-
tion and Painters District Council No 2 of the
International Brotherhood of Painters and
Allied Trades , AFL-CIO Case 14-CA-18053
February 9, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On April 2, 1986, Administrative Law Judge
Steven M Charno issued the attached decision
The Respondent filed exceptions and a supporting
brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions, as modified and explained below, and
to adopt the recommended Order as modified
We agree with the judge that the Respondent
violated Section 8(a)(1) of the Act by refusing to
permit nonemployee handbilling for the Union on
its property We base our decision, however, on
the analysis set forth in Jean Country, 291 NLRB
No 4 (Sept 27, 1988)
The Respondent operates a chain of retail stores,
including a facility located on Dunn Road in St
Louis, Missouri It leases both the building housing
this store and the surrounding parking lot Target
subleases space in the building to a grocery store
and an appliance store The three stores share the
parking lot and a front sidewalk According to ex-
cerpted copies of the lease and subleases covering
the Dunn Road property, its owner has granted
Target the right of quiet enjoyment and exclusive
possession" of the premises and the right to "rea
sonable use of the public and parking areas " The
subleases reserve to Target the right of control
over the common areas and parking lot According
to uncontroverted testimony, the Respondent has
never been told by its landlord that it does not
have daily control over its parking lot For years,
the Respondent has maintained and strictly en
forced an unposted companywide no solicitation,
no-distribution policy prohibiting all nonbusiness
use of its parking lot and facilities i During the
1982 Christmas season , this policy gained notoriety
in local newspapers as a result of its application in
denying The Salvation Army access for charitable
solicitation at all Target store properties
' The United Way employee solicitation conducted by Target employ
ees inside the store is the only authorized exception
933
The parking lot's main entrance is located on
Dunn Road 500 feet south of the building Dunn
Road is a two-lane shoulderless access road off an
interstate highway Cars travel 30-50 miles per
hour on Dunn Road and slow to 10-20 miles per
hour to enter the Respondent's parking lot There
is no traffic light at the main parking lot entrance
A stop sign regulates exiting traffic There are four
other secondary parking lot entrances 2
The Respondent employs an average of four per-
sons in a "metro maintenance crew" to perform
various maintenance tasks throughout 10 area
stores These tasks include interior and exterior
painting similar to work done by metropolitan
painting contractors signatory to a collective bar-
gaining agreement with the Union During the first
9 months of 1985, for instance, metro crewmem-
bers spent approximately 25 percent of their time
engaged in painting chores
Throughout the fall of 1984 and the first half of
1985, Union Distract Representative Jim Engel
communicated several times with Respondent Dis-
tract Manager Ginger Chase Engel requested infor-
mation concerning the crew's wages and benefits
Engel informed Chase that if the Respondent's
painting was done by employees who were receiv-
ing substandard wages and benefits, the Union in-
tended to inform the public of this fact by handbills
or pickets Engel requested that any information to
the contrary be brought to his attention Despite
numerous opportunities, the Respondent never re-
sponded to Engel's inquiries
In June 1985,3 Engel visited the Respondent's
store and noticed scaffolding but no painter The
Respondent's assistant store manager was unable to
answer Engel's wage rate inquiries, but agreed to
inform the store manager of Engel's intention to
advertise his belief concerning the crew's substand-
ard wages and benefits
On July 9 Engel observed a man painting at the
Respondent's store When Engel asked about the
painter's wage rate, he was told to contact the
store manager Engel left the premises and estab-
lished a nonemployee picket on public property at
the main parking lot entrance on Dunn Road The
picket walked on grassy areas on both sides of the
entrance wearing a 20- by 14-inch sandwich-board
sign The picket sign informed the public that em-
2 A southeast parking lot entrance adjacent to the main entrance pro
vides access from a nearby bank Target Road a private drive running
parallel to Dunn Road adjacent to the Respondents front sidewalk has
both an east parking lot entrance from Old Halls Ferry Road and a west
entrance from an adjoining parking lot servicing other businesses There
is also an entrance at the back north end of the parking lot which ad
,toms a proposed road and services a residential area
3 All dates are in 1985 unless otherwise indicated
292 NLRB No 93
934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees of Target doing painting work were paid
less than area standards
Picketing at the main entrance continued until
July 16 According to the mutually corroborative
and credited testimony of the Union's agents, based
on personal observation, drivers entering Target's
parking lot were generally unable to read the
picket sign due to the speed of incoming traffic In
addition, the store manager of the appliance store
located adjacent to Target received four inquiries
about the target of the picketing The parties stipu-
lated that the grocery store located adjacent to
Target received five or six similar customer inquir-
ies
On July 16 Engel decided to cease picketing
That afternoon, Engel and another nonemployee
commenced area standards informational handbill-
ing on the sidewalk adjacent to the Target store
entrance There is no evidence of customer com-
plaints or interference with ingress to or egress
from the Respondent's store Thereafter, Howard
Turner, the store manager, twice approached the
handbillers and asked them to leave because they
were violating the Respondent's no-solicitation, no-
distribution policy Turner approached a third time
stating that he was filing a complaint Thereafter,
the police arrived, conferred with the Respondent,
and ultimately informed the handbillers that they
could remain in place unless they interfered with
customers Engel then left The other handbiller
distributed the remainder of between 150 to 200
handbills during the next 2 hours Subsequently,
the police returned and directed the handbiller to
confine future handbilling to the parking lot en-
trance or face arrest
The following day, the handbiller distributed ap-
proximately 50 handbills during a 3-hour period at
the main parking lot entrance The handbiller's one
attempt to stand in the middle of the narrow en-
trance nearly caused an accident The handbiller
therefore stood on the east side of the entrance,
which required drivers of incoming vehicles to
stop and lower the passenger-side window to take
a handbill Later that morning, Turner approached
and informed the handbiller that she was still on
the Respondent's property and that handbilling at
the parking lot entrance was dangerously blocking
and slowing down traffic Thereafter, Engel rees-
tablished a picket on the public property adjacent
to the main entrance to the parking lot until paint-
ing at the Respondent's store ceased
The judge found that the Union's objective was
the protection of area standards wage rates He fur-
ther found that under precedent balancing conflict
ing property and statutory interests, the Union was
entitled to a reasonable means of communicating its
area standards dispute with the Respondent's cus-
tomers After finding that no reasonable nontre-
spassory alternatives for communication existed,
the judge concluded that the Respondent's conduct
impermissibly interfered with protected, Section 7
activity in violation of Section 8(a)(1) of the Act
In accord with the analysis set forth in Jean Coun-
try, we agree with the judge's conclusion (Jean
Country, 291 NLRB 11 (1988)
In Jean Country, the Board clarified its analytical
approach to access issues in light of the Supreme
Court's two principal, guiding decisions in Babcock
& Wilcox4 and Hudgens 5 The Board held that the
availability of reasonable alternative means of com-
munication must be considered in every access
case, in conjunction with a consideration of the
Section 7 rights and property rights involved The
Board identified numerous illustrative factors that
may be relevant to assessing the relative weight of
the competing rights asserted as well as the avail-
ability of alternative means 6 The Board then
stated (291 NLRB at 14)
Accordingly, in all access cases our essential
concern will be the degree of impairment of
the Section 7 right if access should be denied,
as it balances against the degree of impairment
of the private property right if access should
be granted We view the consideration of the
availability of reasonably effective alternative
means as especially significant in this balancing
process In the final analysis however, there is
no simple formula that will immediately deter-
mine the result in every case
In applying the Jean Country analysis here, we
address first the property right asserted The Re-
spondent has undisputedly established a legitimate
leasehold interest in the store building and sur-
rounding parking lot 7 The relative strength of its
right to maintain the privacy of this leasehold in
terest depends, inter alia, on the use, public access
restrictions, and relative size and openness of the
leasehold 11 The Respondent's commercial enter-
4 NLRB Y Babcock & Wilcox Co 351 U S 105 (1956)
6 Hudgens v NLRB 424 U S 507 (1976)
8 The Board also held that there is an initial burden on the party
claiming the property right to show through testimonial or documentary
evidence that it has an interest in the property and what its interest in
the property is A party has no right to object on the basis of other per
sons property interests Jean Country supra at 13 fn 7 Similarly
the General Counsel bears an initial burden on the alternative means
factor to make a clear showing based on objective considerations
rather than subjective impressions that reasonably effective alternative
means were unavailable in the circumstances Id at 13
° The General Counsels postheanng brief to the judge concedes that
there is no significant difference for the purpose of resolving the issue
he e between the holder of a leasehold interest and the owner of a fee
simple interest
8 Jean Country supra at 13
TARGET STORES
prise is located in a large building shared with two
other businesses that the general public is invited to
patronize These stores share an expansive parking
lot that has several entrances providing unrestrict-
ed access from adjacent public roads There is no
evidence that the Respondent takes any particular
measures to ascertain that individuals who walk in
front of the stores or in the parking lot are poten-
tial customers The Respondent does, however, re-
strict the use of its parking lots and facilities
through maintenance and enforcement of a no-so-
licitation, no-distribution rule The maintenance of
a nondiscriminatory rule makes the Respondent's
property interest more substantial than that of simi-
lar retail enterprises without any restrictions at all,
but the property interest here is still less substantial
than in more private nonretail settings
Turning to the Section 7 activity at issue,9 we
agree with the judge that the Union's objective
was the protection of area wage and benefit stand-
ards and that its investigation of the Respondent's
compliance was as extensive and thorough as the
circumstances permitted Although nonemployee
area standards handbilling has lesser significance in
the scheme of Section 7 than direct organizational
solicitation or the protestation of unfair labor prac-
tices, it is clearly protected 10 The area standards
handbilling at issue was conducted at the store of
the employer at a time when the metro mainte-
nance crew, whose wage and benefit standards
were the subject of the primary dispute, was paint-
ing The handbillers were limited in number, peace-
ful, and unobstructive The handbilling at the store-
front customer entrance was in such proximity to
the employer's customers that the Union could not
have more carefully restricted its activities to reach
the intended audience while not disturbing others
In these circumstances, the Union's area standards
handbilling, although not at the strong end of the
spectrum of Section 7 rights, was certainly worthy
of accommodation against substantial impairment
Turning to the question of the Union' s alterna-
tive means of communicating its message,11 we
9 Jean Country supra at 13 states
Factors that may be relevant to the consideration of a Section 7
right in any given case include but are not limited to the nature of
the right the identity of the employer to which the right is directly
related (e g the employer with whom a union has a primary dis
pute) the relationship of the employer or other target to the proper
ty to which access is sought the identity of the audience to which
the communications concerning the Section 7 right are directed and
the manner in which the activity related to that right is carried out
10 E g Jean Country supra at 17
ii Jean Country supra at 13 states
Factors that may be relevant to the assessment of alternative means
include but are not limited to the desirability avoiding the enmesh
ment of neutrals in labor disputes the safety of attempting commune
cations at alternative public sites the burden and expense of nontre
spassory communication alternatives and most significantly the
935
find that the picketing at the main parking lot en-
trance was generally ineffective and dangerous
owing to the difficulty of reading the picket signs
under existing traffic speed and safety conditions
Handbilling at the main entrance also caused traffic
congestion and was dangerous, the slow rate of dis-
tribution through windows to car occupants also
hampered communication of the Union's message
Customer confusion and actual enmeshment of neu
tral employers in the labor dispute by activity lo-
cated at the main entrance was demonstrated by
the several customer inquiries directed to the
sublessees operating in building space adjacent to
the Respondent's store
Based on the foregoing, we conclude that picket-
ing or handbilling on public property at the main
parking lot entrance would substantially dilute the
effectiveness of the Union' s message , cause confu-
sion , and create safety problems 12 Although the
Union had the opportunity to picket and/or hand-
bill at alternative entrance locations, Engel testified
that he examined these locations and decided to
confine Section 7 activity to the "main entrance
where the main bulk of the people came
through "13 There is no indication that any other
public locations or alternative media warrant con-
sideration as a reasonable alternative for effective
communication of the Union's area standards mes-
sage
In these circumstances, we find that the General
Counsel has proved on the basis of objective
record considerations that there were no reason-
ably effective alternative means for the Union to
communicate its message The Union's Section 7
right would be severely impaired if access were
denied here, damage to the Respondent's property
interest if access were granted would be compara-
tively less, even in light of its no-solicitation, no
distribution rule Under the Jean Country analysis,
the Respondent's property interest was required to
yield to the extent necessary to permit the limited,
extent to which exclusive use of nontrespassory alternatives would
dilute the effectiveness of the message
12 We also find that the unreasonableness of the Respondent s suggest
ed alternative use of a larger stationary picket sign was objectively es
tablished on the present record without the Union s having actually at
tempted to employ such alternative Such picketing would still dilute the
effectiveness of the Union s message when compared to storefront hand
billing and would still be potentially dangerous and likely to enmesh neu
trals
iB In this regard Engel explained without contradiction that the east
parking lot entrance on Old Halls Ferry Road was not heavily used and
cars also entered that entrance pretty fast The back north end en
trance was described by Engel as an exit which is not even on a main
road and is used by people living in a nearby subdivision The west park
ing lot entrance provided access via Target Road to the Respondents
parking lot from an adjoining private parking lot used by other business
es There was no stop sign regulating traffic between lots so it was there
fore difficult for customers to read picket signs or for the union agents to
distribute handbills there
936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
peaceful, and unobstructive primary area standards
handbilling at its storefront entrance Accordingly,
we conclude that the Respondent's refusal to
permit the Union's storefront handbillmg violated
Section 8(a)(1) of the Act
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders the Respond-
ent, Target Stores , Division of Dayton-Hudson
Corporation , St Louis , Missouri , its officers,
agents, successors , and assigns, shall take the action
set forth in the Order as modified
1 Substitute the following for paragraph 1(a)
"(a) Prohibiting representatives of Painters Dis-
trict Council No 2 of the International Brother-
hood of Painters and Allied Trades, AFL-CIO,
from engaging in limited , peaceful , and unobstruc-
tive primary area standards handbilling in front of
the Target Store on Dunn Road in St Louis, Mis-
souri, as long as that activity continues to be con-
ducted by a reasonable number of persons and does
not unduly interfere with the normal use of facili-
ties or operation of businesses not associated with
the Target Store "
2 Substitute the attached notice for that of the
administrative law judge
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT prohibit representatives of Paint-
ers District Council No 2, International Brother
hood of Painters and Allied Trades, AFL-CIO
from engaging in limited, peaceful, and unobstruc-
tive primary area standards handbilling in front of
the Target Store on Dunn Road in St Louis, Mis-
souri, as long as that activity continues to be con
ducted by a reasonable number of persons and does
not unduly interfere with the normal use of facili-
ties or operation of businesses not associated with
the Target Store
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
TARGET STORES, DIVISION OF
DAYTON-HUDSON CORPORATION
Terry L Potter Esq, for the General Counsel
Robert Sykes Esq of Minneapolis Minnesota for the
Respondent
James I Singer Esq, of St Louis, Missouri , for the
Charging Party
DECISION
STATEMENT OF THE CASE
STEVEN M CHARNO , Administrative Law Judge In
response to a charge filed 17 July 1985, a complaint was
issued on 20 August 1985, alleging that Target Stores,
Division of Dayton Hudson Corporation' (Respondent)
violated Section 8(a)(1) of the National Labor Relations
Act, by preventing the Painters District Council No 2 of
the International Brotherhood of Painters and Allied
Trades, AFL-CIO (the Union) from engaging in the pro
tected distribution of handbills on Respondent 's premises
Respondents answer denied the commission of any
unfair labor practice
A hearing was held before me on 21 and 22 October
19852 in St Louis Missouri Briefs were filed by the
General Counsel , the Charging Party, and Respondent
under extended due date of 31 December
FINDINGS OF FACT
I JURISDICTION
Respondent is a Minnesota corporation which operates
a retail store on Dunn Road in North St Louis County
Missouri (Dunn Road Store) During the 12 month
period preceding 31 July Respondent, in the course and
conduct of its business operations within Missouri, pur
chased and received goods valued in excess of $50,000
directly from points outside the State and derived gross
revenues in excess of $500,000 It is admitted, and I find,
that Respondent is an employer engaged in commerce
within the meaning of the Act
I find that the Union is a labor organization within the
meaning of the Act
II ALLEGED UNFAIR LABOR PRACTICES
A Background
The Union and the painting contractors in metropoli
tan St Louis have entered a collective bargaining agree
ment covering work done in the painting craft between
27 January 1983 and 30 November 1985 It is uncontest
ed that the agreement is designed to protect the wages
and benefits of painters working in the St Louis area
Respondents Dunn Road Store is located in a large
building situated at the back of a parking lot Along with
Respondent the building houses an appliance store on
the west side and a grocery store on the east The three
stores share a sidewalk and adjoining driveway that run
the length of the building Although Respondent main
'The Respondent was incorrectly identified in the complaint as
Target Stores Inc At the heanng the complaint and answer were
amended to reflect Respondents correct corporate name which appears
above
2 All dates are 1985 unless otherwise indicated
TARGET STORES
tams control over the sidewalk driveway and parking
lot, all are open to the public without any apparent re
striction on access or use The parking lot's main en
trance is located 500 feet from the building and is on
Dunn Road, a two lane shoulderless access road for
Interstate 270 Traffic on Dunn Road travels between 30
and 50 in p h , but slows to 10 to 20 in p h to enter the
lot There is no traffic light governing traffic at the park
ing lot entrance, and the only stop sign at that location
regulates traffic exiting the lot If a car were to attempt
to stop as it entered the lot any following car could not
pass without moving into the opposite lane on Dunn
Road
Respondent employs a four man metro maintenance
crew' (crew) to perform maintenance at its 10 stores in
the St Louis area The tasks listed in the crew s job de
scription include carpentry, plumbing, electrical work,
cart repair, and all interior and exterior painting While
Respondent has contracted out painting jobs in the
recent past, in May 1985 it added two additional employ
ees to the crew, at least in part because of an increase in
the amount of painting that needed to be done Of the
5973 hours worked by the crew during the first 9 months
of 1985, a total of 1489 5 hours were spent painting It is
undisputed that the painting done by the crew is identi
cal to the painting done by those contractors who are
signatories to the collective bargaining agreement with
the Union and that the members of the crew work in the
same manner and use the same tools and equipment as
the Union's members
B Investigation and Warning
In August 1984, Jim Engel, the Union s district repre
sentative, was notified by one of the Union's members
that the Dunn Road Store was being painted Engel con
tacted Respondents district manager Ginger Chase to
find out who was performing the painting Chase re
sponded that the metro maintenance crew did Respond
ent's painting When asked by Engel what the crew's
wages were, Chase refused to respond Engel explained
that if the crew were receiving wages below the area
standard, he would have to advertise the fact Engel fol
lowed this conversation with a 29 September 1984 letter
to Chase which set forth Engel s intention to inform the
public by handbills or pickets that Respondents employ
ees who were performing painting work received wages
and benefits below the area standard The letter also re
quested that any evidence to the contrary be brought to
Engel's attention Engel did not advertise on this occa
sion because the painting at the store was completed
shortly thereafter
Between August 1984 and June 1985, Engel had three
to four telephone conversations with Chase and sent her
several more letters During each conversation and in
every letter, Engel requested information about the
crew's wages and benefits and informed Chase that, if
painting continued to be done by employees who were
receiving substandard wages and benefits, the Union
would have to advertise the fact Engel s last phone con
tact with Chase occurred during early June Although
Chase was given multiple opportunities, she never re
937
sponded to Engels inquiries concerning Respondent s
wage rates
Later in June, Engel was again informed of painting at
the Dunn Road store Engel went to the store and, on
his arrival, noticed scaffolding but no painter He went
inside and spoke to a man who identified himself as an
assistant manager When the assistant manager professed
an inability to answer Engel s questions concerning the
painting, Engel asked him to tell the manager that Engel
believed that Respondent was using its own employees
to paint, that Engel assumed that the employees wages
and benefits were substandard, and that the Union would
have to advertise these facts The assistant manager
stated that he would convey the message 3
On 9 July Engel returned to the Dunn Road Store and
observed a man painting When Engel asked the man s
pay rate, the painter told Engel to contact the store man
ager Engel left the premises on this occasion without
speaking to anyone inside the store Around 2 p in that
day Engel established a picket at the parking lot en
trance on Dunn Road The picketers walked on the
grassy areas on both sides of the entrance, wearing 20
inch by 14 inch signs , which stated that the Union had
an area standards dispute with Respondent At the end of
the day, Engel dictated a letter to Howard Turner, man
ager of the Dunn Road Store, which was virtually iden
tical to the letters Engel had earlier sent to Chase That
letter was typed and mailed on 10 July and received by
Respondent on 12 July
Picketing was maintained at the parking lot entrance
until 16 July Due to the speed of incoming traffic and
demands on the attention of those attempting to enter or
leave the parking lot, drivers were generally unable to
read the picket signs Very few vehicles actually slowed
or stopped in an attempt to read the signs, and those that
did often impeded the flow of traffic, resulting in the
screeching of tires as other drivers attempted to avoid
accidents 4 The practical unreadability of the signs en
gendered public confusion in that the managers of both
the appliance and grocery stores were questioned by cus
tomers about who was being picketed
C Handbilling
On 16 July Engel ceased picketing because it was inef
fective in conveying the Union s message At approxi
mately 2 p in that day, Engel and union member Ruby
Holmes began handbilling on the sidewalk adjacent to
the store entrance The text of the handbill which was
significantly more extensive than that appearing on the
picket signs, is as follows
3 Engel so testified Manager Howard Turner and Assistant Managers
Kim Dawkins and Dale Murphy all testified that they did not recall a
conversation with Engel Murphy testified however that a man named
Jung was employed as an assistant manager between June 1 and an un
certain time toward the end of the month Jung was not called as a wit
ness and Respondent offered no documentary evidence that would dem
onstrate that Jung was not employed at the Dunn Road store during
late June Accordingly I credit Engel s testimony on this point
4 1 credit the unrebutted testimony of picket Bockerstette to this effect
938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
NOTICE TO THE PUBLIC
TARGET EMPLOYEES PERFORMING
PAINTING AT THIS TARGET STORE
TARGET pays it Painters less than the prevailing
wages and fringe benefits for similar work pre
formed [sic] in this area
The members of our Union, who reside in this
general area, have continually sought to improve
and maintain Wages and Fringe Benefits for our
families We believe that Employers who cut wages
and fringe benefits, and attempt to reduce the earn
ing power of the working people, are contributing
to a situation which ultimately hurts us all
WE BELIEVE THESE FACTS SHOULD BE
CONSIDERED IN MAKING YOUR DECISION
AS TO WHETHER OR NOT YOU WANT TO
PATRONIZE THIS COMPANY
This publicity campaign is addressed only to the
public and is not addressed to any employer or em
ployees We do not ask nor do we seek to compel
any employer to recognize or bargain with us as the
representative of its employees
PAINTERS
DISTRICT COUNCIL NO 2
AFL-CIO
As customers passed by, Engel and Holmes distributed
the handbills without interfering with the customers
movement into or out of the store There is no evidence
that Respondent received any complaints from its cus
tomers concerning the Union s activities
At approximately 2 p m on July 16, Turner ap
proached Engel and Holmes, informed them that they
were violating Respondents no solicitation policy, and
asked them to leave When Engel declined to do so,
Turner reentered the store About 10 minutes later,
Turner again approached Engel and Holmes and told
them he would file a complaint for illegal trespass and
solicitation if they did not leave the premises Engel
asked if Turner was going to have them arrested, and
Turner reiterated that he would file a complaint After
another 15 minutes had passed Turner approached
Engel and Holmes a third time and stated that he had
asked the handbillers to leave and that he was now going
to file the complaint 5
Respondent then called the police who arrived a few
minutes later After conferring with Respondent's man
agement team , which had been joined by Chase the
police came out of the store, spoke with the handbillers
and, ultimately, told them that they could remain in front
of the store as long as they did not bother the custom
ers Engel then left the premises, and Holmes continued
handbilling for the remainder of the day During a 2
5 Turner so testified Although Engel and Holmes were under the im
pression that Turner had threatened to call the police neither appeared
certain on cross-examination that Turner had actually used the word
police I therefore infer that their impression was not an unreasonable
consequence of hearing Turner state that he would complain concerning
the handbillers illegal activities
hour period that day, Holmes distributed between 150
and 200 handbills
While Holmes was waiting for her ride at the end of
the day, one of the police officers with whom she had
talked earlier stopped and told her that she could no
longer handbill in front of the store and would have to
move to the parking lot entrance Holmes informed
Engel who contacted the police department the Follow
ing day Engel was told by the police that handbillers at
the store entrance would be subject to arrest Engel
thereafter directed Holmes to handbill at the parking lot
entrance
On 17 July Holmes began to distribute handbills at the
parking lot entrance Because the entrance was narrow,
it was impossible for her to stand in the middle Indeed,
her one attempt to do so nearly resulted in an accident
She therefore took a position to one side of the entrance
which required the drivers of incoming vehicles to come
to a stop and lower the passenger side window in order
to take a handbill Again, the speed and volume of in
coming traffic prevented most vehicles from stopping
without risking an accident Holmes distributed approxi
mately 50 handbills during a 4 hour period 6 At approxi
mately 10 a in, Turner approached and informed Holmes
that she was still on Respondent's property, that hand
billing at the parking lot entrance was dangerous, and
that she was blocking traffic When Holmes reported to
Engel, he decided that handbilling at the parking lot en
trance was unsafe and reestablished the Union s picket at
that location, which was maintained until the painting of
Respondent's store had ended
D Discussion
The General Counsel and the Union contend that Re
spondent violated Section 8(a)(1) when Turner interfered
with the Union's handbilling It is well established that
handbilling undertaken in order to compel an employer
to conform to area wage and benefit standards, is a pro
tected activity within the meaning of the Act 7 E g
Giant Food Markets 241 NLRB 727 (1979) enf denied
633 F 2d 18 (6th Cir 1980) see Hod Carriers Local 41
(Calumet Contractors), 133 NLRB 512 (1961) Respond
ent argues, however that the protections of the Act do
not apply to the Unions conduct in this case for three
reasons First, the handbilling was not valid area stand
ards activity because Respondent is not a direct competi
tor of the employers that signed the collective bargaining
agreement that established the area wage and benefit
standards for the painting craft Second, the Union did
not make an adequate attempt to determine he wages
and benefits actually paid by Respondent Finally, the
Union did not demonstrate that it had no reasonable al
ternative means of communicating its message
Respondents argument that the Union was not lawful
ly acting to protect area standards is legally premised on
a footnote in Sears Roebuck & Co v Carpenters 436
U S 180 206 fn 42 (1978), which states that the ration
8I credit Holmes uncontroverted testimony concerning these condi
tions
r It is uncontested that the Union s objective here was the protection
of area wage and benefit standards rather than union recognition
TARGET STORES
ale for protecting area standards picketing is that a union
has a legitimate interest in protecting the wage standards
of its members who were employed by competitors of
the picketed employer Based on that dictum, Respond
ent maintains that, because it is not a painting contractor
and its employees are not full time painters the wages
and benefits it pays those employees have no effect on
the standards of remuneration of area painters It is clear
that, when Respondent pays substandard wages for
painting work, it benefits from cheaper labor costs than
those available to firms which employ union members
Whether Respondent performs such work in house or
contracts it out, the resulting adverse impact on the area
standards of employment is identical In either case, the
Union has a legitimate interest in protesting Respondent s
actions See generally Plumbers Local 741 (Keith Riggs
Plumbing), 137 NLRB 1125, 1126 (1962) Here, Respond
ent's employees spend a significant portion of their time
doing the same work in the same fashion with the same
tools and equipment as do members of the Union If the
performance of work in more than one craft were found
to demonstrate the absence of an impact on area wage
and benefit standards in either craft, no moderately Intel
ligent employer need ever again find itself embroiled in
an area standards dispute Such a facile evasion of the
doctrine cannot be countenanced
Respondent's second argument turns on the question
of whether the Union investigated the wages and benefits
paid by Respondent "with as great a degree of thorough
ness as the circumstances will permit Teamsters Local
296 (Alpha Beta Markets), 205 NLRB 462, 471 (1973)
Normally, the nature and extent of a union s investiga
tion of the wages and benefits paid by an employer is of
significance only as an aid in determining the union s ob
jective in picketing or handbilling, a point that is not in
issue in this case Bypassing this conceptual obstacle for
the nonce and addressing Respondents contention di
rectly, it is clear that the Union made the precise investi
gatory effort repeatedly found by this Board to be cru
cial-it asked the employer See, e g, Teamsters Local
544 (Better Home), 274 NLRB 164 (1985), Hotel & Res
taurant Employees (Perry s) 207 NLRB 199, 204 (1973),
Alpha Beta Markets, 205 NLRB at 472 Indeed, it did so
on at least nine occasions between August 1984 and the
date it began handbilling In each instance, Respondent
refused to supply the requested information According
ly I find that the Union s investigation was as extensive
and thorough as the circumstances " which were totally
within Respondent's control, would permit
Respondents final argument is grounded on the
premise that its property rights outweigh the Union s
rights under Section 7 of the Act Conflicting property
and statutory interests must be balanced in order to as
certain the propriety of nonemployee access to private
property Hudgens v NLRB, 424 U S 507 (1976), NLRB
v Babcock & Wilcox Co, 351 U S 105 (1956) In an area
standards dispute , a union is allowed a reasonable means
of communicating with an employers customers The
factors relevant to the question of reasonableness include
traffic flow, congestion, safety, enmeshment of neutrals,
and the opportunity to read the union's advertisement
See Giant Food Markets, 241 NLRB at 728-729 (1979)
939
Respondents argument that the Union had available to
it a reasonable alternative to handbilling at the store en
trance is not supported by the record Picketing at the
parking lot entrance was shown to be ineffective, 8 poten
tially dangerous to motorists, and likely to enmesh the
neutral appliance and grocery stores in the dispute
Handbilling at the parking lot entrance caused conges
tion and a constant danger of automobile collisions Its
ineffectiveness is demonstrated by the fact that the Union
distributed one eighth to one sixth as many handbills at
the parking lot entrance as it did at the store entrance
during a similar timespan Handbilling at the store en
trance took place in an unposted area which was open to
the public, and the Union s handbilling activity did not
result in any disturbance or interruption of the flow of
customers into or out of Respondents store I therefore
find that the Union employed the only reasonable means
of effectively communicating its message
Accordingly, I find that Respondent's demands that
the Union s handbillers leave the premises, its threat to
file a complaint for illegal trespass if the handbillers re
mained on the premises, and its request that the police
arrest the handbillers if they remained on the premises
are impermissible interferences with the Union s Section
7 rights See Giant Food Markets, 241 NLRB at 729 I
further find that these acts by Respondent are unfair
labor practices violative of Section 8(a)(1) of the Act
CONCLUSIONS OF LAW
1 The Respondent is an employer engaged in com
merce within the meaning of Section 2(2), (6), and (7) of
the Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 By prohibiting representatives of the Union from
distributing handbills as part of the Union s protected
concerted activity by (a) demanding that the representa
lives leave the premises, (b) threatening to file a com
plaint against them for illegal activity if they did not
leave the premises, and (c) asking the police to arrest
them if they did not leave the premises Respondent en
gaged in unfair labor practices in violation of Section
8(a)(1) of the Act
4 The unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed9
8 Respondents suggestion that the Union should have used a larger
sign is disingenuous The necessary complexity of the message set forth in
the Union s handbill together with traffic speed and safety conditions
would have required a billboard display in order for that message to be
read by Respondents customers
9If 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
940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent Target Stores, Division of Dayton
Hudson Corporation, St Louis, Missouri, its officers,
agents , successors and assigns, shall
1 Cease and desist from
(a) Prohibiting representatives of the Union from dis
tnbuting handbills as part of the Union's protected con
certed activity
(b) In any like or related manner interfering with, re
straining, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Post at its Dunn Road Store copies of the attached
notice marked Appendix 10 Copies of the notice, on
10 If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
forms provided by the Regional Director for Region 14
after being signed by the Respondents authorized repre
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other maten
al
(b) Notify the Regional Director in writing within 20
days from the date of this Order, what steps the Re
spondent has taken to comply
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board