Target Stores

National Labor Relations Board - Board Decisions

Dec 21, 1990

300 N.L.R.B. 964 (N.L.R.B. 1990)

964
300 NLRB No. 136
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Respondent Target Stores has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues and the
positions of the parties.
2 In affirming the judge’s decision, we note that no exceptions were filed
to the judge’s finding that neither Respondent Target Stores nor Respondent
Bashford Manor Mall wrongfully removed handbillers from the Bashford
Manor Mall property, nor to his finding that Respondent Target had met its
threshold obligation of proving a property interest in the sidewalks in front
of both its Jeffersontown and Westport stores.
The judge stated that the Act ‘‘does require that the Union show that it ac-
tually tried all possible alternative means of communicating its message.’’ It
is apparent from the cases cited by the judge immediately preceding his state-
ment that the word ‘‘not’’ was inadvertently omitted from the sentence. We
correct that error.
1 Attorney Michael T. McNelis of Ice, Miller, Donadio & Ryan, requests to
withdraw his appearance on behalf of Respondent Target in Case 9–CA–26181
dated April 2, 1990, is granted.
2 Respondent Target’s unopposed motion to correct the transcript which was
served on September 12, 1989, is granted and received in evidence as R. Tar-
get (T) Exh. 13.
Target Stores, a Division of the Dayton-Hudson
Corporation and Kentucky State District Coun-
cil of Carpenters, United Brotherhood of Car-
penters and Joiners of America, AFL–CIO.
Bashford Manor Mall, a Joint Venture of Bashford
Manor Corporation and Long Corporation and
Kentucky State District Council of Carpenters,
United Brotherhood of Carpenters and Joiners
of America, AFL–CIO. Cases 9–CA–26181 and
9–CA–26329
December 21, 1990
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On June 6, 1990, Administrative Law Judge Irwin
Kaplan issued the attached decision. Respondent Tar-
get Stores filed exceptions and a supporting brief,1 and
the Charging Party filed an answering brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Target Stores, a Division
of the Dayton-Hudson Corporation, Louisville, Ken-
tucky, its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
Deborah Jacobson, Esq., for the General Counsel.
James U. Smith III, Esq., (Smith & Smith), of Louisville,
Kentucky, for Respondent Bashford.
Samuel R. Born, Esq., and Michael H. Boldt, Esq., (Ice, Mil-
ler, Donadio & Ryan),1 of Indianapolis, Indiana, for Re-
spondent Target.
Charles R, Isenberg, Esq., and Thomas J. Schultz, Esq.,
(Segal, Isenberg, Sales, Stewart & Cutler), of Louisville,
Kentucky, for the Charging Party.
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge. These consoli-
dated cases were heard on July 10 and 11, 1989, in Louis-
ville, Kentucky. The underlying charges in Cases 9–CA–
26181 and 9–CA–26329 were filed by Kentucky State Dis-
trict Council, United Brotherhood of Carpenters and Joiners
of America, AFL–CIO (Charging Party, Carpenters, or
Union), on February 16 and April 5, 1989. On May 11,
1989, the Union filed amended charges in Case 9–CA–
26329.
In essence, the charges in Case 9–CA–26181 allege that
Target Stores, a Division of the Dayton-Hudson Corporation
(Respondent Target or Target), prevented union representa-
tives from distributing handbills on the sidewalk directly in
front of Target stores in three shopping malls located in Lou-
isville, Kentucky, by requesting and obtaining the assistance
of local police departments to stop such activities. Similarly,
the charges in Case 9–CA–26329 allege that Bashford Manor
Mall, a joint venture of Bashford Manor Corporation and
Long Corperation (Respondent Bashford), the lessor of one
of the aforenoted shopping malls, prohibited union handbill
distribution on the sidewalk directly in front of Target’s store
in Respondent Bashford’s mall. These charges gave rise to
an order consolidating cases, consolidated complaint and no-
tice of hearing dated May 23, 1989 alleging that by so cur-
tailing the Union’s handbill distribution, Respondent Target
and Respondent Bashford violated Section 8(a)(1) of the Na-
tional Labor Relations Act (the Act).
Respondent Bashford and Respondent Target (collectively,
Respondents) filed separate answers conceding, inter alia,
certain jurisdictional facts but denying the alleged unfair
labor practices. Basically, the Respondents contend that their
property rights at the locations where the disputed activity
occurred are greater than the Union’s Section 7 right to
handbill.
It is contended, the record supports, and I find that these
are prototype ‘‘access’’ cases to be assessed within the ana-
lytical framework of the Board decision in Jean Country,
291 NLRB 11 (1988), and its progeny.
On the entire record, including my observation of the de-
meanor of the witnesses as they testified, and after careful
consideration of the posttrial briefs,2 I make the following
FINDINGS OF FACT
I. JURISDICTION
It is alleged, the Respondents admit, the record supports,
and I find that Respondent Bashford and Respondent Target
are employers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
It is alleged, the Respondents stipulated, the record sup-
ports, and I find that the Union is now, and has been at all
965TARGET STORES
3 Respondent Target adduced testimony from four witnesses setting the ini-
tial date of the union handbilling as December 12: Deborah Saunier, Robert
Sykes, Wells, and Leytem. Saunier, then employed as a secretary for Robinson
(now employed by Target) worked inside the construction trailer and did not
testify that she actually saw the handbilling activity. I found her testimony on
direct somewhat unreliable. For example, Saunier responded affirmatively to
a leading question that the handbilling occurred on ‘‘December 12, a Friday’’
(Tr. 318); it is noted that December 12 was a Monday. Sykes, then Target’s
labor relations specialist had not observed the handbilling either but learned
about the activity from Wells over the telephone. Neither Wells nor Leytem
saw any handbilling activity but both assertedly learned about it from others.
In these circumstances, while noting a degree of internal consistency, I find
that the evidence falls short of definitively establishing that the handbilling
commenced on December 12, as contended by Respondent Target.
times material a labor organization within the meaning of
Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
In early fall, 1988, the Dayton-Hudson Corporation, parent
corporation of Respondent Target, purchased a group of
Richway Gold Circle stores, including one in Lexington,
Kentucky. These stores were all to be remodeled and to open
on or about April 30, 1989, as Target Stores. The Union’s
unsuccessful efforts to secure the carpentry work for the re-
modeling of the Target Store in Lexington, Kentucky, led to
the Union’s handbilling of Target’s Louisville, Kentucky,
stores (approximately 70 miles away) resulting in the instant
controversy.
The subject of the remodeling work at Target’s Lexington
store had come up in early November, 1989, in a chance
conversation on a commuter flight to Lexington, Kentucky,
between Edwin Eugene Wells, a construction superintendent
of remodels employed by Target, and Bill Gibbs (also re-
ferred to as Goetz), a Carpenters Union representative. Wells
and Gibbs sat in adjacent seats on the plane, introduced
themselves to each other, and carried on a friendly conversa-
tion. On that occasion, Wells told Gibbs, that he was going
to Lexington to look after the construction work to be per-
formed at the Lexington Target Store, formerly called Gold
Circle. Gibbs told Wells that he was with the Carpenters
Union and was familiar with that Gold Circle store. He also
asked Wells whether union labor would be doing the remod-
eling work. According to Wells, he told Gibbs that he would
not be making that decision. (Gibbs did not testify.)
On or about December 8, 1988, Michael Ginn, business
service representative for the Carpenters, appeared at the
Lexington Target Store location in an effort to secure the
carpentry work for the Union. While Ginn’s responsibilities
to secure work for members cover the entire State of Ken-
tucky, his primary geographical territory is the Lexington
area which is comprised of 43 counties. According to Ginn,
Gibbs told him of his plane conversation with Wells and that
the latter told him (Gibbs), that the work would be done with
union labor. Thus, Ginn appeared at the Lexington site to
meet with Wells to discuss the prospects of union carpenters
doing the remodeling work. Ginn testified that he met with
Wells briefly but the latter told Ginn to discuss the matter
with the general contractor, R. D. Robinson Inc. (Robinson),
of Brentwood, Tennessee and that said general contractor
would return to the site, Monday, December 12, 1988. While
the essence of Ginn’s testimony of his conversation with
Wells is not materially in dispute, Wells asserted that the
conversation was over the telephone and not at the site.
Wells however, also asserted (denied by Ginn), that Ginn
said something about hating to see any picketing in front of
the Target Lexington store.
According to Wells, after the aforenoted telephone con-
versation on December 8, he did not talk with Ginn again.
On the other hand, Ginn testified that he returned to the Tar-
get site in Lexington on December 12 and Wells introduced
him to Robert Leytem, job superintendent for Robinson. As
testified by Ginn, he told Leytem that he heard that the work
was going to be done with union labor and gave the latter
a copy of the local agreement. Leytem assertedly stated that
he would fax the agreement to his corporate office in Brent-
wood, Tennessee, and would get back to him. Ginn testified
that he told Leytem that he could supply him with a list of
union subcontractors to bid for the carpentry work in the
Lexington area and left the names of three such contractors
with him.
Leytem testified that he told Ginn that he would be inter-
ested in a ‘‘project only’’ agreement but that the latter stated
he required a 1-year contract. According to Leytem, he tried
to get Ginn to relax some of the Union’s contractual require-
ments but that the latter would not bend. Leytem also as-
serted that Ginn told him that his carpenters were hungry and
had not worked for some time and that he ‘‘would hate to
see violence or vandalism occur on the job.’’ Ginn denied
making any such threats. (For reasons noted below, I find
that the factual matters in dispute occurring prior to February
14, 1989, the date the alleged violations occurred, have little
or no bearing on the outcome of the allegations. The events
prior to February 14 serve mainly as backdrop.)
According to Respondent Target’s witnesses, on Monday,
December 12, 1988, members of the Carpenters Union com-
menced handbilling at the Lexington Target store which at
that time was still undergoing remodeling work and not
scheduled to open for business until the spring. Further, the
handbilling lasted only for approximately 3 hours and did not
resume thereafter at that site.3 According to Ginn, the
handbilling first occurred in late December 1988, or early
January 1989 and lasted 5 days. In any event, there are no
outstanding charges or complaint allegations against the
Union and the record does not disclose any credible evidence
of wrongdoing or misconduct either on the part of the Union
in handbilling at that site or on the part of Target in respond-
ing thereto.
Ginn testified that sometime in December 1988, after his
first meeting with Leytem earlier in the month, the latter in-
formed him over the telephone that Robinson was willing to
sign an agreement and use union labor if Target would go
along with the arrangement. Thus, according to Ginn’s testi-
mony, Leytem told Ginn that the decision was left to Target.
(Tr. 30) Ginn telephoned Sykes (Wells had identified Sykes
for Ginn as the person to deal with for Target) and told him
what he had heard from Leytem regarding Target’s control
vis-a-vis union or nonunion labor. Sykes corroborates Ginn
on this point and noted that Ginn appealed to him on the
basis that the Union had performed such carpentry work for
Target’s predecessor, Richway Gold Circle. Sykes testified
that this conversation occurred on December 30, or much
later in the month than indicated by Ginn. (As noted pre-
viously, many of the non-essential facts regarding the events
in December, 1988 are in dispute, particularly as to dates of
966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The text of the handbill in its entirety reads as follows (G.C. Exh. 2):
PLEASE DON’T PATRONIZE THIS TARGET STORE.
Target’s use of non-union out-of-state contractors shows their lack of
concern for our community.
Target wants this community to support this store after they have taken
the construction jobs away from the people living in this area.
Target’s out-of-state contractors don’t pay wages and benefits equal to
our area standards.
It’s a small inconvenience for you to go elsewhere to shop, but loss
of jobs, wages and benefits is a very real danger to us and our families.
THANKS FOR NOT PATRONIZING TARGET
TELL YOUR FRIENDS THAT TARGET DOES NOT SUPPORT
OUR COMMUNITY
Kentucky State District Council of Carpenters
Member of the Kentucky Fair Wage Coalition
phone conversations and handbilling.) In any event, it is un-
disputed, that Sykes told Ginn that under no circumstances
would he dictate to general contractors to select companies
on a ‘‘ union or non-union’’ basis but rather ‘‘on the basis
of bids through the generals.’’ (Tr. 401-402; see also Tr. 31.)
By cover letter dated December 27, 1988, Ginn requested
Wells to examine an enclosed handbill and gave him 5 work-
ing days to respond regarding the truthfulness of its contents
(G.C. Exhs. 2, 3).4 Wells called Sykes on December 28
about these documents and then faxed the material to him.
Sykes telephoned Ginn on December 30 to respond orally to
Ginn’s letter to Wells. Ginn pressed Sykes to respond in
writing but the latter refused stating that Target was not so
obligated. According to Ginn, Sykes told him that he did not
know whether any of the contents of the handbill were true
or not but he considered its use as unfair (Tr. 33). Sykes de-
nied ever referring to the handbill as unfair and testified that
he told Ginn that he ‘‘considered the handbill in its entirety
to be materially misleading and untruthfull’’ (Tr. 403). Dur-
ing this telephone conversation, Sykes noted that he had
some reports that Ginn made some threats to vandalize Tar-
get’s property which threats Ginn denied having made.
By letter to Sykes from Ginn dated January 5, 1989, Ginn
wrote as follows (G.C. Exh. 4):
Mr. Sykes:
Following my telephone conversation with you on
Friday, December 30, 1988, I advised our Local Coun-
sel that, although you were unable to find any error as
to the facts stated in the enclosed handbill [G.C. Exh.
2], you were of the opinion that the handbill was ‘‘un-
fair.’’
Our Counsel has suggested that, as a courtesy to you,
we afford you a second opportunity to more adequately
articulate your objections.
I assure you any error of law or fact can be rem-
edied, at time, if you will simply advise us in writing,
of specific errors, within five days of your receipt of
this communication.
Respectfully,
Michael W. Ginn
Business/Service Representative
Ginn did not receive any response to his second letter. Ac-
cording to Ginn, on or about January 5, 1989, the Union
commenced distributing a generic or different handbill enti-
tled ‘‘rat alert’’ (G.C. Exh. 5) on public property in front of
the Target store in Lexington. The handbill does not identify
any contractor or company but informs the public, inter alia,
that the construction site is infested with rats. Target shared
the same parking lot with employees and customers of Chi
Chi’s Restaurant and Arby’s Restaurant. They, as well as
Target’s general contractor, Robinson, and its construction
workers all used the same entrance way as the handbillers.
According to Ginn, as the overall traffic at the site was lim-
ited (Target was not yet open for business), the dispute was
not effectively communicated to Target’s patrons (the in-
tended audience). Ginn also testified, without contradiction,
that Robinson was not performing work anywhere else in the
State of Kentucky. As there were no other open Target stores
in Lexington, the Union decided to transfer its handbilling
activity to Louisville, Kentucky, some 70 miles away, where
Target had five open stores. The Target stores in Louisville
were its only stores open for business in the State of Ken-
tucky at that time. (Tr. 38, 64)
Ginn was one of four staff representatives or organizers
who reported to Lawrence W. Hujo III, the Union’s director
of organizing for the State of Kentucky. Hujo directed the
handbilling that was to take place at the Target stores in
Louisville. In doing so, Hujo testified that he had visited
each of the Target Louisville sites (all located in shopping
malls), to determine the safest place to position the
handbillers and concluded that it was on the sidewalks im-
mediately in front of each of the Target stores.
The five Target stores in Louisville are located in
Jeffersontown, St. Matthews, Bashford Manor, Preston High-
way, and Dixie Highway. Hujo testified that two members
were assigned to handbill each of the Target locations. Ac-
cording to Hujo, handbilling took place at each location, but
the handbillers were removed only from Jeffersontown, St.
Matthews, and Bashford Manor sites. (The allegations pertain
only to these three locations.) The handbilling at each loca-
tion occurred on February 14, 1990. The respective chiefs of
police in each of the locations were informed by the Union
of the dispute with Target and of the planned handbilling ac-
tivity.
Hujo’s father, Lawrence William Hujo (L. Hujo), and
Charles Meador, both union members, were assigned to
handbill Target at the Jeffersontown location. (That store is
also referred to as the J-town Target store and Taylorsville
Road store.) The J-town Target store is situated between a
grocery and a drugstore and shares the same shopping center
with a bank, movie theaters, and several other shops (G.C.
Exh. 6(a) and 6(b); Resp. T. Exh. 11). The only entrances
into the shopping center are from Taylorsville Road, a four-
lane main artery—two lanes in both directions—with a 35-
mile-per hour speed limit. While cars do slow down to about
20 to 25 miles per hour in making turns from Taylorsville
Road into the parking lot, there are no delineated decelera-
tion lanes. The only controlled traffic light in the area is at
the intersection of Patty Lane and Taylorsville Road. Be-
tween the light and the shopping center is a concrete island.
Thus, cars cannot be driven directly into the shopping center
from Patty Lane without first making a turn onto Taylorsville
Road. There are no sidewalks in front of the shopping center
but there is a grassy strip, approximately 15 feet wide imme-
diately off a traffic lane.
According to Hujo, he did not want the handbillers out on
the road stopping traffic with the potential to cause accidents.
In assessing traffic congestion, Hujo noted, inter alia, that the
967TARGET STORES
5 All dates are in 1990, unless otherwise indicated.
6 According to Tinklenberg, he ‘‘believed’’ the suggestion to handbill on the
asphalt island had come from the policeman and not the handbiller (Tr. 440).
Tinklenberg first testified that he did not make a commitment to the policemen
as to the alternative place to handbill only to testify a moment later that he
told the police officer, ‘‘I don’t know why they couldn’t do that.’’ (Compare
Tr. 440 with Tr. 443.) I found Tinklenberg to be inconsistent, elusive, less
than forthright, and unreliable as a witness.
weather was cold and that cars would have to slow down and
windows rolled down for divers to accept handbills.
Respondent Target operates its J-town store as a lessee
(R.T. Exh. 10). The lessor or owner of the property is the
New Plan Realty Company (an unrelated entity) (Tr. 468).
Under the lease, the lessor retained possession and control of
the sidewalks, driveways and parking areas (R. Exh. 10).
Since at least 1982, Target has largely, if not absolutely
maintained and strictly enforced a written no-solicitation/no-
distribution policy restricting the use of its parking lots and
facilities to business use only (R. Exh. 6). The lessor does
not maintain its own no-solicitation/no-distribution policy at
the shopping center (Tr. 468). According to Patrick Osborne,
the Target store manager at J-town, the lessor has not ob-
jected to his actions when he has previously asked ‘‘Girl
Scouts or other people soliciting or selling to leave’’ (Tr.
471).
On February 14, 1990, at around 10 a.m.,5 L. Hujo and
fellow union member Meador began handbilling (G.C. Exh.
2) on the sidewalk in front of the entrance to the J-town Tar-
get store. Store Manager Osborne arrived at the shopping
center around 10.15 a.m., and approached L. Hujo and
Meador at the store entrance. Osborne identified himself as
the store manager, made some reference to Target’s no-solic-
itation policy and asked the handbillers who had given them
permission to engage in such activity. In turn, the handbillers
handed Osborne a document which discussed a recent Board
decision, Jean Country, 291 NLRB 11 (1988), and its impact
on certain union activity on shopping mall property (G.C.
Exh. 9). L. Rujo was asked by Osborne ‘‘Why Target?,’’ to
which the former explained that Target was using nonunion
carpenters to do the remodeling work. Osborne called the po-
lice when the handbillers refused to leave. Two police offi-
cers appeared at around 10.45 a.m., and after talking to
Osborne, they told the handbillers to go out to the street to
handbill or to leave. When L. Hujo responded that
handbilling in the street was too dangerous, he was told by
the police that he and Meador faced arrest. The handbillers
than left the property.
The handbilling of Target’s St. Matthews location (also
called Westport Road store) is also encompassed by the alle-
gations. There too, Target is a tenant in a shopping center.
Target shares the use of the parking lots and sidewalks with
an adjacent Kroger store. There are three entrances which
can be used to enter the common parking lot. The main en-
trance is off Westport Road, which from that point has one
lane of traffic in the direction of side-streets, Thierman Lane
(left of Westport Road) and Primrose Drive (a right turn
from Westport Road), and two lanes of traffic in the opposite
direction (closest to the parking lot entrance) towards Hub-
bards Lane (G.C. Exh. 7(a) and 7(b)). The speed limit on
Westport Road is 35 miles per hour. Another entrance into
the parking lot is from Thierman Lane (a side street), with
a 25-mile-per-hour speed limit and two lanes of traffic going
in both directions. The Target store is approximately the
same distance from the Westport Road and Thierman Lane
entrances. The only other entrance is from Hubbards Lane,
which entrance appears somewhat hidden behind a
Volkswagon dealership. The only traffic light is at the corner
of Westport Road and Hubbards Lane. There are stop signs
on the side streets on to Westport Road as well as a stop
sign in the exit lane leaving the center parking lot.
Cloyce L. Gill and Charles Aschbacher were the union
handbillers at Target’s Westport store. They had been
handbilling on the sidewalk in front of the Target store for
approximately 5 minutes when the store manager, Thomas
Tinklenberg, came out and told the handbillers to stop and
that Target does not permit such activity. Gill told
Tinklenberg that he was interfering with his constitutional
rights and handed him a document which discussed, among
other things, union activity at shopping malls (G.C. Exh. 9).
Tinklenberg spoke to an off-duty policeman, in uniform, who
then happened to be in the store and got him to remove the
handbillers. Gill credibly testified that he asked the police-
man if he’d permit handbilling on a small asphalt island just
inside the entrance way which offer was rejected; the police-
man stated that Target wanted such activity off the property
and out on the street on Westport Road (Tr. 169-172).6
As noted above, union handbillers were also removed from
a third location on February 14, the Bashford Manor Mall
(Bashford Manor). Bashford Manor is an enclosed shopping
mall located on 55 acres. There are three major anchor ten-
ants: Bacon—a general department store, Hess—a general
department store, and Target—a discount store. The mall has
approximately 540,000 square feet of leasable area of which,
190,000 square feet is leased by Bacon, 108,000 by Target
and 64,000 by Hess. Each of these so-called anchor stores
can be entered from the outside as well as from inside the
enclosed mall. There are approximately 63 other smaller ten-
ants within the enclosed mall which collectively lease about
185,000 square feet.
The mall has been owned since its inception by the Long
Corporation and the Bashford Manor Corporation (collec-
tively lessor or landlord), was a joint venture. Target has
been a tenant since sometime in 1980 when it assumed the
lease of Ayr-Way Stores, Inc, which lease is still in effect
(R.B. Exhs. 3, 4). The lessor has long maintained a no-solici-
tation no-distribution statement in its standard lease. It reads
that the tenant shall ‘‘neither solicit business nor distribute
advertising matter in the parking lot or in other common
areas’’ (R.B. Exh. 5, p. 12, sec. 502(j)). While Target and
Bacon are the only tenants without the standard lease, their
individually negotiated leases provide, among other things,
that the landlord’s rules and regulations for the use of the
common area shall be applicable to all tenants (R.B. Exh. 3,
p. 24, sec. 607). The policy has been largely but not abso-
lutely enforced. For at least 2 years prior to the instant
handbilling, there had been no departures from such policy.
The lessor prohibits all forms of handbilling and posts a sign
to that effect at each entrance to the mall (R.B. Exh. 6).
There are entrances into the mall from three roads:
Bashford Manor lane on the north (two lanes at 40 miles per
hour), Bardstown Road on the east (six lanes at 40 miles per
hour), and Mall Lane on the south and west (two lanes at
35 miles per hour) (G.C. Exh. 8(a) and 8(b); R. Bashford (B)
968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Respondent Target contends that the handbilling activity in dispute mani-
fests conventional proscribed secondary conduct which is not protected by the
proviso to Sec. 8(b)(4). It argues that Ginn threatened to picket Target, a sec-
ondary employer, to obtain an agreement to use only union contractors to do
the remodeling work, which agreement is assertedly proscribed by Sec. 8(e)
of the Act. Further, it contends that the contents of the handbill are untruthfull.
Thus, Respondent Target argues, that as the Union’s activities were violative
of Sec. 8(b)(4), Jean Country and its progeny do not apply. First, I credit
Ginn’s testimony that he did not threaten to picket Target’s premises. While
Sykes told Ginn that he heard of such reports, Ginn denied them and no such
threat was made to Sykes. It is also noted that no picketing occurred. As for
the contents of the handbill, for reasons noted infra, I find them truthful within
the meaning of the proviso. In these circumstances, Sec. 8(b)(4) does not pro-
hibit secondary handbilling. See generally DeBartolo v. Florida Gulf Coast
Building Trades Council, 485 U.S. 568 (1988). It is also noted, that while Re-
spondent Target argues that Jean Country does not apply, its brief contains
a comprehensive analysis thereof.
8 The Board also made it clear that there are certain threshold obligations
each party must meet. Thus, the Board held that ‘‘there is an initial burden
on the party claiming the property right to show, through testimonial or docu-
mentary evidence, that it has an interest in the property and what its interest
in the party is. A party has no right to object on the basis of the other persons’
property interests.’’ Jean Country, supra at 13 fn.7. Similarly, the Board rely-
ing on NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956) held that the
General Counsel bears the initial burden on the alternative means factor to
make ‘‘a clear showing, based on objective considerations, rather than subjec-
tive impressions, that reasonably effective alternative means were unavailable
in the circumstances.’’ Jean Country, id. at 13. In this latter regard, the Board
noted that ‘‘generally, it will be the exceptional case where the use of news-
papers, radio and television will be feasible alternatives to direct contact.’’
(Id.)
Exh. 2). There are two entrances into the mall from Bashford
Manor Lane, neither of which is regulated by a traffic signal.
There are also two lanes entering and exiting and a stop sign
for vehicles leaving the parking lot. The western most en-
trance on that road is directly in front of the Target store but
cars proceeding in that direction must turn to avoid a 50- to
60-foot concrete island or barrier. There are grassy areas on
both sides of the Bashford Manor entrance in front of the
Target store that extend from 35 to 40 feet. According to Re-
spondent Bashford’s manager, Charles Costabell, pedestrians
frequently walk from the condominium project across the
way to the mall through that area (Tr. 290). There are two
entrances from Mall Road, one of which is behind the Target
store but neither entrance is controlled by a traffic signal.
The only other entrance into the mall is from Bardstown
Road which at that point is regulated by a traffic signal. That
entrance is closest to the Bacon store and furthest from Tar-
get.
David Costello and Donald Aschbacher engaged in
handbilling at Target’s Bashford Manor store. The activity
and circumstances were much the same was at the other lo-
cations described above. Here, unlike the situation at the
town and Westport stores, the lessor (Respondent Bashford),
not Target, had the handbillers removed.
B. Discussion and Conclusions
These cases involve the denial of trespassory access to the
Union to inform an employer’s clientele by handbilling, that
said employer (Respondent Target), uses nonunion contrac-
tors who pay employees less than area wages and benefits.
As noted previously, it is contended, the record supports, and
I find, that the handbilling activity in question must be as-
sessed within the analytical framework of the Board decision
in Jean Country supra, and its progeny.7
The record disclosed that in early fall, 1988, Respondent
Target’s parent corporation purchased a group of Richway
Gold Circle stores (Richway), including one in Lexington
Kentucky and they were to be remodeled as Target stores.
Target contracted with Robinson, an out-of-state nonunion
general contractor to do the remodeling work on the former
Richway store in Lexington. In December 1988 or January
1989, the Union circulated a generic handbill or ‘‘RAT
ALERT’’ at the Lexington store, which noted, inter alia, that
the construction site was infested with rats and asking for
community support to rid themselves of rats. The handbilling
at that Target store proved to be ineffective. In this regard,
it is noted, inter alia, that the store in question was not to
open until late April 1989 or several months after that initial
handbilling. Thus, the Union decided to engage in
handbilling activity at Target’s open stores in Kentucky,
which were located in Louisville, approximately 70 miles
away.
It is the Union’s handbilling at Target’s Louisville stores
located in Jeffersontown (Target’s J-town store), St. Mat-
thews (Westport store), and Bashford Manor Mall (Bashford
Manor store), where the handbillers were denied trespassory
access that are in issue. Respondent Target is a lessee at all
three locations. Respondent Bashford is the owner and lessor
of Bashford Manor Mall and is also alleged to have denied
the handbillers access in violation of Section 8(a)(1) but only
as to that location. The handbilling at J-town, Westport, and
Bashford Manor occurred on the same day, February 14,
1989, with the identical message and will be treated below
seriatim within the framework of a Jean Country analysis.
In Jean Country, supra, the Board reexamined and clari-
fied access cases where there are, as here, competing claims
of Section 7 and property rights and concluded that the avail-
ability of reasonable alternative means of communication
must always be considered in conjunction therewith. The
Board delineated numerous factors which tend to support
each of the categories labeled as ‘‘property rights,’’ ‘‘Section
7 rights,’’ and ‘‘alternative means,’’ while also noting that
these categories are not entirely distinct and self-contained.8
Then the Board instructed as follows:
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 ac-
cess should be granted. We view the consideration of
the availability of reasonably effective alternative
means as especially significant in this balancing proc-
ess. In the final analysis however, there is no simple
formula that will immediately determine the result in
every case. [Id. at 14.]
I turn now to assess each of the categories which comprise
the Jean Country three-part access test to the instant case,
considering first, the nature and strength of Respondent Tar-
get’s property rights at J-town. As noted previously, Target
operates its J-town store as a lessee; the lessor or owner of
the mall is the New Plan Realty Company. The mall or shop-
ping center is also occupied by a grocery store, drugstore,
bowling alley, movie theaters, and several other shops. The
sidewalks and parking areas are for common use although,
under the lease, the lessor retains possession and control.
There are no signs or written notices conveying any restric-
969TARGET STORES
9 Under Sec. 8(b)(4) it is an unfair labor practice for a union or its agents:
(ii) to threaten, coerce, or restrain any person engaged in commerce or
in an industry affecting commerce where . . . an object thereof is—
. . . .
(B) forcing or requiring any person to cease using, selling, handling,
transporting, or otherwise dealing in the products of any other producer,
processor, or manufacturer, or to cease doing business with any other per-
son, . . .
. . . .
Provided further, That for the purpose of this paragraph (4) only, noth-
ing contained in such paragraph shall be construed to prohibit publicity,
other than picketing for the purpose of truthfully advising the public, in-
cluding consumers and members of a labor organization, that a product
or products are produced by an employer with whom the labor organiza-
tion has a primary dispute and are distributed by another employer, as
long as such publicity does not have an effect of inducing any individual
employed by any other person other than the primary employer [to cease
work].
10 Respondent Target takes issue with the statement that its use of nonunion
out of state contractors shows its lack of concern for the community. I view
this statement as a clearly partisan subjective union claim which the public
is likely to discern as such rather than as fact.
tion on who may enter the shopping center or use its side-
walks or parking area. The operative lease provision states
as follows:
Lessor shall have and it hereby retains such possession
and control of the sidewalks, driveways, and parking
area in the center as will authorize lessor to exclude
therefrom all persons who are not tenants in the center
and their customers and patrons; and, in particular, as
will authorize lessor to maintain an action in trespass
against such persons who are not such tenants, cus-
tomers and patrons and who are or may be trespassing
or picketing thereon. Nothing herein contained shall be
construed to mean or imply that any portion of the side-
walks, driveways and parking area are leased to the les-
see, but it is agreed that lessor will continue said estab-
lished sidewalks, driveways and parking area for the
use of said tenants, customers, and patrons. [Emphasis
added.] [R.T. Exh. 10, p. 5.]
Here, the handbilling was on the sidewalk immediately in
front of the Target store. The lessor does not maintain a no-
solicitation, no-distribution policy. In these circumstances,
without more, it would appear that outside of the physical
confines of the store that, Respondent Target, is devoid of
any property interest within the meaning of Jean Country.
See Polly Drumond Thriftway, 292 NLRB 331 (1989), rely-
ing on Barkus Bakery, 282 NLRB 351 (1986), enfd. mem.
sub nom. NLRB v. Caress Bake Shop, 833 F.2d 306 (3d Cir.
1987). However, the record disclosed some factors, as noted
below, which tend to establish, and I find, that Respondent
Target, in the use and enjoyment of its leasehold, has a le-
gitimate property interest in the handbilling area, albeit near
the bottom rung of the spectrum of property rights.
Thus, the record disclosed, inter alia, that Target maintains
and enforces its own no-solicitation, no-distribution policy.
Store Manager Patrick Osborne testified that during the past
year, he denied storefront access to the Girl Scouts on six
to eight occasions and similarly denied such access to local
schools attempting to sell cookies. According to Osborne, at
least during his two years as manager of the J-town store,
there has not been one occasion where someone was attempt-
ing to solicit on the sidewalk in front of the store where they
were not asked to leave. With regard to the instant
handbilling, Osborne testified that the lessor’s manager ap-
plauded his action in having the handbillers removed. Target
generally cleans and polices the storefront area and paints the
sidewalk curb. It also maintains approximately 325 shopping
carts bearing the Target logo that are stored in front of the
store for use by Target patrons.
Having found that Respondent Target met its threshold ob-
ligation vis- a-vis its property interest, I turn now to consider
whether the Union’s handbilling activity is a Section 7 right
covered by the proviso to Section 8(b)(4) and if so, the rel-
ative strength of that Section 7 right.9
The handbill distributed by the Union on February 14,
clearly manifests area standard activity. Thus, the handbill
truthfully advises the public, inter alia, that ‘‘Target’s out-of-
state contractors don’t pay wages and benefits equal to our
area standards.’’ (The handbill in its entirety is set forth
supra at fn. 4.) In this regard the record disclosed that the
Union learned back in December 1989, that Target’s general
contractor, Robinson, of Brentwood, Tennessee, hired non-
union carpenters at $7 to $8 per hour, wage rates below area
standards. Further, the Union sent copies of the disputed
handbill to Target on two separate occasions in order to con-
firm that their contents were accurate asking Target to point
out in writing any errors. This, Target admittedly refused to
do, although, it telephoned its objection. Union representative
Michael Ginn credibly testified that Target official, Robert
Sykes, merely protested that the handbill was unfair but did
not point out anything that was untrue.
Respondent Target argues that the handbill is defective be-
cause it also fails to identify the primary employer, Robin-
son, with whom the Union had its primary dispute, relying
on Boxhorn’s Big Muskego Gun Club v. Electrical Workers
Local 494, 798 F.2d 1016, 1019 (7th Cir. 1986). Contrary to
Respondent Target, I find its reliance on Boxhorn misplaced
as distinguishable on its facts. There, unlike the instant case,
the handbill was deceptive, by intimating that the nonunion
construction workers were employees of the secondary em-
ployer and not the contractor. Here, there is no such confu-
sion or ambiguity contained in the handbill.10 Thus, as the
Union engaged in essentially truthful area standard activity,
it is clearly a protected exercise of Section 7 rights. See Fed-
erated Department Stores, 294 NLRB 650, 652 (1989), re-
affirming Giant Food Markets, 241 NLRB 727, 728 (1979),
enf. denied on other grounds 633 F.2d 18 (6th Cir. 1980).
However, here, the strength of such Section 7 rights is large-
ly diluted by a number of factors.
First, the Board has consistently observed that area stand-
ards handbilling is not at the strong end of the spectrum of
Section 7 rights. Target Stores, 292 NLRB 933, 935 (1989);
Hardee’s Food Systems, 294 NLRB 642, 643 (1989); Fed-
erated, supra at 652. Those rights are further discounted
when, as here, the situs of the handbilling activity is 70 miles
away from where Robinson, the general contractor and pri-
mary employer is performing the below ‘‘area standards’’
work. See Federated, supra at 652; Hardee’s, supra at 643.
Compare, Target Stores, supra at 935 (where the location of
the area standards handbilling in issue was at the store of the
primary employer at a time when the employees whose
wages and benefit standards were the subject of the primary
dispute were working); see also Best Co., 293 NLRB 845,
847 (1989). (The handbilling was conducted at a time when
970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the primary employer’s employees were working on the Re-
spondent’s premises.) Here, where Target’s employees do not
appear to be beneficiaries, directly or indirectly, the weight
assigned the area standard handbilling is reduced further.
Federated, supra at 652. While these factors undercut the
strength of the Union’s Section 7 position, I find consistent
with Jean Country principles, that it still remains worthy of
accommodation against substantial impairment. See also Best
Co., supra; Target Stores, supra at 935.
Having found that the parties have met their respective
threshold burdens as to property interests and Section 7
rights, I turn now to assess the availability of ‘‘alternative
means’’ of communication, as required by Jean Country and
its progeny under the three-part accommodation balancing
test. In Jean Country, the Board noted a partial list of factors
that may be relevant to an alternative means determination.
These factors included:
[t]he desirability of avoiding the enmeshment of
neutrals in labor disputes, the safety of attempting com-
munications at alternative public sites, the burden and
expense of nontrespassory communication alternatives,
and most significantly, the extent to which use of the
nontrespassory alternatives would dilute the effective-
ness of the message. [Id. at 13.] [Footnote omitted.]
In the instant case, the Union by handbilling on the side-
walk directly in front of the Target store with handbills iden-
tifying that company alone, there was virtually no chance to
confuse the public as to the targeted employer or otherwise
enmeshing neutrals or other companies into the dispute. In
this connection, it is noted, that Target shares the parking lot
and other common areas with numerous other businesses. As
for the entrances into the shopping center which are accessed
only from Taylorsville Road, the record disclosed, inter alia,
that said Taylorsville Road is a four-lane main artery—two
lanes in both directions with a 35-mile-per-hour speed limit.
While traffic may slow down to 20 to 25 miles per hour for
vehicles making turns into the lot, there are no delineated de-
celeration lanes or sidewalks at those entrances. Hujo, who
organized the handbilling activity, credibly testified that he
had visited the Target sites earlier to assess, inter alia, safety
conditions, as well as to determine the area not likely to en-
mesh other businesses.
Clearly, in the circumstances of this case, Hujo’s assertion
that he did not want the handbillers out on the Taylorsville
Road access entrance to the parking lot with the concomitant
risk or potential of an accident is not unreasonable. Simi-
larly, it is not unreasonable for the Union to assign its
handbillers to an area least likely to cause traffic congestion.
Hojo testified that the weather was cold and that anyone
driving into the shopping area from the access road to re-
ceive a handbill would have to decelerate or come to a stop
and roll down the window. The Board has noted that such
factors also tend to reduce the effectiveness of the
handbilling. See Best Co., supra at 847; Target Stores, supra
at 935; see also Emery Realty, v. NLRB, 863 F.2d 1259,
1265 (6th Cir. 1988). (The Act does require that the union
show that it actually tried all possible alternative means.)
While the Union back in December 1988 or January 1989,
engaged in handbilling activity at the primary site in Lex-
ington, Kentucky, the record disclosed that the handbilling
was ineffective. The contractor was then engaged in the re-
modeling work of the Target store; however, the opening of
that store was still months away. As the Union hoped to
reach Target’s customers, that objective could not then be
met. The same conditions existed in February 1989, but then
the Union handbilled only at open Target stores. Compare,
Hardee’s, supra at 643 (where the Board noted that the re-
modeled store remained open for business and that the union
could have conveyed its message to Hardee’s customers
there, instead of handbilling at Hardee’s restaurants, 15 miles
away.) While it is noted that under Jean Country, the union’s
definition of the audience it seeks to reach is not necessarily
controlling, it is also noted, as discussed previously, that the
kind of secondary handbilling involved herein is protected by
the proviso to Section 8(b)(4).
I also find that Federated, supra, relied on by Respondent
Target, is distinguishable on its facts. There, the union
handbilled the secondary (Richway), after that company’s re-
lationship with the primary contractor had ceased. The Board
noted, inter alia, that the General Counsel, failed to dem-
onstrate that the union could not have effectively engaged in
primary activity at the premises of other secondary employ-
ers that have ‘‘a current connection with the primary em-
ployer.’’ (Id. at 652.) Here, unlike the situation in Federated,
after Target caused the handbillers to be removed from its
J-town store in Louisville, Robinson (the primary nonunion
contractor), continued an ongoing relationship with Target
for several months vis-a-vis the remodeling work on the Lex-
ington store, the primary location. It appears from
uncontradicted record testimony, that Robinson, a Tennessee
company, was not engaged in work elsewhere in Kentucky.
The Target Lexington store did not open for business until
late April 1989. Thus, back in February, when the
handbilling occurred, the only Target stores open in Ken-
tucky were in Louisville—some 70 miles away, the only lo-
cation where Target customers could effectively be reached.
Having found that there is no safe, or reasonable alter-
native means available to the Union to communicate its Sec-
tion 7 message, and having evaluated the relative strength of
the other major categories, property interests, and Section 7
rights, as required by Jean Country and its progeny, noting
also that the handbilling was limited—two handbillers at
each location—that their activity was peaceful with virtually
no interference to Respondent Target’s business and free of
enmeshing other businesses, I further find that the Union’s
Section 7 right would be severely impaired, if access were
denied; whereas, if access we granted, the damage to Re-
spondent Target’s property interest would be comparatively
less. Accordingly, I find that Respondent Target’s conduct in
removing the handbillers from its J-town storefront, violated
Section 8(a)(1), as alleged.
Turning to Target’s Westport store, I find that the Jean
Country categories at that location largely mirror the condi-
tions as they existed at the J-town store. While at the West-
port store, Target’s leasehold interest is broader, it still falls
short of reaching the stronger end of the property rights spec-
trum. In support of Target’s property interest, the lease pro-
vides, inter alia, that Target ‘‘shall have the exclusive right
to use the Common Area.’’ Further, the lease charges the
‘‘Tenant’’ (Target) with the ‘‘sole responsibility’’ for clean-
ing, maintenance, and repair of the common area. (R.T. Exh.
8, pp. 11–12) The lease defines common area as ‘‘[t]hat part
971TARGET STORES
11 The record disclosed that the Union’s handbilling activity was virtually
the same at all three locations and for reasons noted previously (J-town store
discussion), is protected under the proviso to Sec. 8(b)(4) and constitute Sec.
7 rights. I am also mindful, as noted previously, that where, as here, area
handbilling is involved, that the Board does not deem such activity to be at
the strong end of the spectrum of Sec. 7 rights.
12 Respondent Bashford permitted Girl Scouts to solicit the sale of their
cookies on one Saturday afternoon a year to accommodate the request by the
president of Bacon’s, its largest tenant. Thus, Respondent Bashford contends
that it ‘‘had a very substantial business reason or making this exception.’’
of the Real Estate containing the parking area, roads, ways
of access, [and] sidewalks.’’ (Id., p. 3.) On the other hand,
the record disclosed, that Target subleases a portion of the
property to Kroger Stores (Kroger) and that the adjacent
Kroger store shares the same parking lot and sidewalks.
Kroger also shares with Target the cost of maintenance ex-
penses. Thus, Target shares its property interest with its
neighbor, Kroger. The lease also contains certain limitations
on Target’s use of the premises. One such provision states
as follows:
(E) Lessee [Target] shall not place or erect signs or dis-
plays which in any way interfere with the flow of ve-
hicular or pedestrian traffic in the center; and shall not
paint or erect signs or displays on the exterior of the
premises, without lessor’s written consent. [Id., p. 2]
The record disclosed that the shopping center is open to
anyone who wants to enter and in fact the public is so in-
vited. Target does not prohibit pedestrians from cutting
across its property (Tr. 444–445). While Target maintains
and enforces a no-solicitation, no-distribution rule, a factor
strengthening its property interest, the strength of that interest
becomes less compelling when noting otherwise the open
and public nature of that business property. In a previous
case involving Target, the Board addressed this point stating:
‘‘The maintenance of a nondiscriminatory rule makes the re-
spondent’s property interest more substantial than that of
similar retail enterprises without any restriction at all; but the
property interest here is still less substantial than in more pri-
vate nonretail settings.’’ Target Stores, supra at 935.
Having found that Target possesses a sufficient leasehold
property interest to satisfy its threshold burden, I further find
that the damage to that interest would be comparatively
slight, if access were granted, when weighed against the
greater damage to the Union’s Section 7 right, if access were
denied.11 As for ‘‘alternative means,’’ the conditions at the
Westport store were much the same as existed at J-town.
Thus, the Union, at the primary Lexington site, could not ef-
fectively reach Target’s customers as that store was still sev-
eral months away from opening for business. The safety or
traffic considerations at the Westport store are such as to
foreclose any kind of viable handbilling at entrances to the
shopping center and common parking lot. As noted pre-
viously, the main entrance is off Westport Road which has
a 35-mile-per-hour speed limit. Similarly, Hubbards Lane has
a 35-mile-per-hour speed limit and additionally that road
leads into a side entrance which is obscured somewhat be-
hind a Volkswagon dealership. The only other entrance is off
Thierman Lane, a side street. The traffic on Thierman Lane
is in both directions with a 25-mile-per-hour speed limit.
On the other hand, the handbilling on the sidewalk imme-
diately in front of the Target store clearly eliminated the
specter of enmeshing a neutral such as Kroger into the dis-
pute and at the same time vastly reduced the potential for
traffic congestion and the risk of traffic accidents. I am per-
suaded, on the state of this record, that there were no other
viable means for the Union to communicate its protected
message. In the circumstances of this case, also noting that
the handbilling was peaceful and unobtrusive, the Union
should not have been denied such trespassory access. In
short, I find that Respondent Target by denying access to the
Union to handbill its Westport store additionally violated
Section 8(a)(1), as alleged.
Still to be determined is the denial of access to the Union
handbillers on the sidewalk in front of Target’s store at the
Bashford Manor shopping mall. Unlike, J-town and Westport
where Target is the sole respondent, here, both the lessor
(Bashford Manor Corporation) and the lessee (Target) are re-
spondents.
The record disclosed that Respondent Bashford, as owner
and lessor retains substantial control over the shopping center
and as such, its property interest is clearly at the stronger end
of the spectrum. Thus, Respondent Bashford’s standard lease
states, inter alia, that the tenant shall ‘‘neither solicit business
nor distribute advertising matter in the parking lot or in other
common areas.’’ As noted previously, some 63 tenants, all
but anchor tenants Target and Bacon, are covered under the
standard lease. As to said anchor tenants, the same provision
appears to be incorporated by reference in their respective
leases. Thus, their individually negotiated leases provide that
the landlord’s rules and regulations for the use of the com-
mon area shall be applicable to all tenants. Similarly, Re-
spondent Bashford has restricted the use of its property to
certain exhibitors and to the public generally from solicita-
tions and handbilling. For example, the record disclosed that
Respondent Bashford sponsors monthly promotional events
such as car shows and antique shows to attract customer traf-
fic for its tenants. These exhibitors are given a copy of the
landlord’s rules and regulations, one of which (rule number
11) states, as follows:
There will be no soliciting, selling, or petitioning upon
mall property. Distribution of advertising materials in
any of the all parking lots will not be permitted. [R.B.
Exh. 8.]
Further, the record disclosed that Respondent Bashford
posts a notice to the ‘‘public’’ at every street entrance to the
mall prohibiting ‘‘solicitation or distribution of handbills’’
(R.B. Exh. 6). While the record revealed that Respondent
Bashford has, in a few limited instances, permitted excep-
tions such as the selling of Girl Scout cookies, these excep-
tions appear to cover special circumstances,12 and for at least
the past 2 years, there has been no departure from the land-
lord’s no-solicitation, no-distribution policy. To police this
policy and to provide overall security and maintenance in the
common areas, Respondent Bashford employs approximately
30 employees.
These factors and the record as a whole persuade me that
the strength of Respondent Bashford’s property interest war-
rants accommodation where, as here, comparatively weak
Section 7 rights are involved (for reasons noted previously)
and the record fails to establish that the Union was without
other reasonable means to communicate its message. As for
972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 The grassy area at the Westport store location is only 10 to 15 feet wide
and the safety and other traffic considerations there are clearly more manifest.
14 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National 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.’’
15 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 objec-
tions to them shall be deemed waived for all purposes.
this latter factor, ‘‘alternative means,’’ it is noted that the
General Counsel bears the initial burden through objective
considerations, to establish the nonviability thereof. See Jean
Country, supra at 13–14. Thus, there is virtually no probative
evidence to negate the testimony of mall manager, Charles
Costabell, who described the grassy area adjacent to the
Bashford Manor Lane entrance just outside the private prop-
erty line in front of the Target store, as a reasonable place
for the Union to communicate its message. The record dis-
closes that the grassy area is approximately 35 feet wide and
and 35 feet in length on the western side of the entrance and
extends to approximately 45 feet on the eastern side of the
entrance and at curb level.13 While there is as 40-mile-per-
hour speed limit on Bashford Manor Lane, cars must decel-
erate in the turning lane to make a 90 degree turn. There is
also a 15-mile-per-hour speed limit sign posted at or up close
to the entrance. Further, pedestrians, mostly from the residen-
tial condominiums across the way from the shopping center,
frequently pass through the grassy area and mall entrance. In
this regard, it is noted that most shoppers who pass through
that entrance visit the Target store. In the circumstances of
this case, I am unpersuaded that the Union was without a
safe and reasonably effective alternative on nontrespassory
property to communicate its dispute to the public.
The record disclosed that Respondent Bashford had the
police intervene to terminate the handbilling activity on mall
property on the sidewalk immediately in front of the Target
store. While such denial of trespassory access comported
fully with the policy of Respondent Target, said Respondent
was not responsible for removing the handbillers at this loca-
tion. As such, the allegations as they relate to Respondent
Target at its Bashford Manor store are not tenable. With re-
gard to Respondent Bashford, given the relative strengths
vis-a-vis property interests and Section 7 rights, and noting
a failure to establish a lack of ‘‘alternative means,’’ I find
that the diminution of such Section 7 rights is comparatively
slight, when weighed against the loss to Respondent
Bashford’s substantial property interests, if trespassory access
were permitted.
In the total circumstances of this case, I find that neither
Respondent Bashford nor Respondent Target wrongfully re-
moved the handbillers from Bashford Manor Mall property
in violation of Section 8(a)(1), as alleged. Accordingly, I
shall recommend that these allegations be dismissed.
CONCLUSIONS OF LAW
1. Respondent Target is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Respondent Bashford is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
3. The Union, Kentucky State District Council of Car-
penters and Joiners of America, AFL–CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
4. By prohibiting handbill distribution by the Union to Re-
spondent Target’s customers on the sidewalk directly outside
the entrances to its J-town and Westport stores, said Re-
spondent Target interfered with the exercise of Section 7
rights in violation of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondent Target did not interfere with the exercise of
the Union’s Section 7 rights in violation of Section 8(a)(1)
of the Act, with regard to its Bashford Manor store.
7. Respondent Bashford did not interfere with the exercise
of the Union’s Section 7 rights in violation of Section 8(a)(1)
of the Act, by prohibiting handbill distribution in the cir-
cumstances of this case.
On the foregoing findings of fact and conclusions of law,
and on the entire record in this case, I issue the following
recommended14
ORDER
The Respondent, Target Stores, a Division of the Dayton-
Hudson Corporation, Louisville, Kentucky, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Prohibiting peaceful, unobstructive, and protected
handbill distribution by the Union to its customers on the
sidewalk directly outside the entrances to its J-town and
Westport stores.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteeing Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act.
(a) Post at its J-town and Westport stores, copies of the
attached notice marked ‘‘Appendix.’’15 Copies of said notice
on forms provided by the Regional Director for Region 9,
after being signed by Respondent Target’s authorized rep-
resentative, shall be posted by said Respondent Target imme-
diately 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 Respondent Target to ensure that the notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER RECOMMENDED that those portions of the
consolidated complaint found to be without merit are hereby
dismissed.
973TARGET STORES
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 vio-
lated the National Labor Relations act and has ordered us to
post and abide by this notice.
WE WILL NOT prohibit peaceful, unobstructive, and pro-
tected handbill distribution by the Kentucky State District
Council of Carpenters, United Brotherhood of Carpenters and
Joiners of America, AFL–CIO, to our customers on the side-
walk directly outside the entrances to our J-town and West-
port stores.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
TARGET STORES, A DIVISION OF THE DAY-
TON-HUDSON CORPORATION