Leslie Homes, Inc.

123 316 NLRB No. 29 LESLIE HOMES, INC. Leslie Homes, Inc. and Metropolitan District Coun- cil of Philadelphia & Vicinity, United Brother- hood of Carpenters and Joiners of America, Inc. Case 4–CA–18791 January 25, 1995 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS STEPHENS, BROWNING, COHEN, AND TRUESDALE This is the first occasion for us to consider how the Supreme Court’s decision in Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), affects an employer’s right to bar nonemployee union representatives from engaging in ‘‘area standards’’ handbilling on the employer’s pri- vate property. The narrow issue before us is whether the Respondent violated the Act by refusing to permit representatives of the Union to distribute leaflets to po- tential home buyers on the Respondent’s premises. For the reasons discussed in part II,D, below, we find that the Respondent did not violate the Act as alleged. Procedural Background On a charge filed by the Union on April 2, 1990, the General Counsel of the National Labor Relations Board by the Regional Director for Region 4 issued a complaint and notice of hearing on September 27, 1990. The complaint alleged that the Respondent vio- lated Section 8(a)(1) when it interfered with the dis- tribution by union representatives of union literature to prospective purchasers of residential condominiums built by the Respondent at the site known as Crest- wood Condominiums. On October 11, 1990, the Re- spondent filed an answer admitting in part and denying in part the allegations of the complaint, and denying that it had violated the Act. On February 25, 1991, the General Counsel, the Re- spondent, and the Union filed with the Board a stipula- tion of facts. The parties agreed that the charge, affida- vit of service of the charge, complaint and notice of hearing, the Respondent’s answer, the order postponing a hearing indefinitely, and the stipulation of facts with attached exhibits constitute the entire record in this case. The parties further stipulated that they waived a hearing and the making of findings of fact and conclu- sions of law and the issuance of a decision by an ad- ministrative law judge. On June 6, 1991, the Board issued an order approv- ing the stipulation of facts and transferring the pro- ceeding to the Board. The General Counsel and the Respondent filed briefs. The Union joined the brief of the General Counsel. On February 24, 1992, the General Counsel filed a motion to dismiss the complaint, asserting that the Su- preme Court’s January 27, 1992 decision in Lechmere precluded further prosecution of the complaint. On March 9, 1992, the Charging Party filed a response to the motion to dismiss. On April 17, 1992, the Board issued a notice inviting the parties to submit supple- mental briefs concerning the impact of Lechmere on this case. The General Counsel and the Charging Party filed supplemental briefs. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent is a Pennsylvania corporation en- gaged in the building and developing of residential real estate with its principal place of business in Holland, Pennsylvania. During the 12-month period preceding the execution of the parties’ stipulation of facts, the Respondent derived gross revenues in excess of $500,000 and purchased and received materials and supplies valued in excess of $50,000 directly from points located outside the Commonwealth of Pennsyl- vania. We find that the Respondent is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. We further find that the Union, Metropolitan District Council of Philadelphia and Vicinity, United Brother- hood of Carpenters and Joiners of America, is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICE A. Facts The parties stipulated to the following background facts. The Crestwood project (Crestwood) is a develop- ment containing 288 residential condominium units. Construction began on the project in December 1988 and was expected to be completed in June 1991. At the time the stipulation was signed, approximately 200 of the 288 anticipated units had been completed and 180 were occupied. There are no commercial enter- prises on or near the project. Condominium owners own their own individual units. A condominium association composed of con- dominium owners and the Respondent owns the devel- oped common space. The Respondent owns the con- trolling interest in the association. The Respondent also owns the undeveloped common space. The evidence before us consists of a written stipula- tion of facts, a videotape made by the Union of several of the key sites, and an engineering blueprint (declara- tion plan) of the development. The physical layout of the project and its surroundings is described and illus- trated in these items. The entire project sits on the north side of Oxford Valley Road, a two-lane thor- oughfare (one lane in each direction) with a speed limit at that location of 45 miles per hour. Vehicles may enter and exit Crestwood only two ways, by Les- 124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 The declaration plan indicates that part of the Leslie Drive island may be outside the property line; however, the parties stipulated that the island is entirely on the Respondent’s property. lie Drive or Norwalk Drive. These two streets, pri- vately owned by the condominium association, inter- sect only with each other inside the project, and with Oxford Valley Road at the entrances to the project. Leslie Drive is the main entrance to Crestwood. A landscaped traffic island at this entrance separates the one lane entering Crestwood from two exit lanes, one for vehicles turning right onto Oxford Valley Road, and one for those exiting to the left. There is a stop sign at the Leslie Drive exit onto Oxford Valley Road. Vehicles turning right into the project may pull first onto a 9-foot wide shoulder of Oxford Valley Road be- fore turning onto Leslie or Norwalk. The Norwalk Drive entrance from Oxford Valley Road is approxi- mately 500 feet from the Leslie Drive entrance. Like Leslie Drive, Norwalk Drive’s entering and exiting lanes are divided by a traffic island, although Norwalk has only one exit lane. Whereas the traffic island in Leslie Drive is entirely on Crestwood property, a small portion of the Norwalk Drive island extends beyond the property line.1 A public sidewalk 4 feet wide runs the entire length of the Crestwood property along Oxford Valley Road. The inner edge of the sidewalk and the Crestwood property line are separated by a grassy area 3 feet wide. Between the sidewalk and Oxford Valley Road is a public grassy verge, also 3 feet wide. Prior to the incidents giving rise to these charges, the project was posted with a no-trespassing sign, but its location and contents are not part of the record. The no-trespassing policy had been enforced prior to the date of the stipu- lation; most instances of enforcement involved adoles- cents. The Respondent contracts with a security com- pany to provide security in the evenings. At the time the stipulation was executed, a model condominium, located on Leslie Drive, 225 feet inside the entrance, was open for inspection by potential cus- tomers 7 days a week from 10 a.m. to 6 p.m. Approxi- mately 12 to 35 persons visited the model home on Sundays, the busiest day. A substantial majority of po- tential buyers enter the development by vehicle, while a relatively small percentage enter on foot. When construction commenced, union carpenters employed by Samuel Kaufman, Inc. worked on the first 50 units. In December 1989, however, the Re- spondent began to employ carpenters directly. The Re- spondent has not paid these carpenters prevailing union wages or benefits. On April 1, 1990, the Union attempted to distribute handbills in front of the model condominium open to the public for inspection. The handbills communicated, among other messages, a complaint that the Respond- ent was paying some workers on the project below the area standards for such labor. The handbill stated: This is an appeal to the general public. Leslie Homes, Inc. employs foreign/immigrant workers at Crestwood, who are paid substantially less than the prevailing wage and benefit standards in the area. Leslie Homes, Inc. is destroying the fair wages and living standards of area tradesmen who return their earnings to the local economy by pur- chasing goods, services and housing, and by pay- ing local and federal taxes. The document then questioned the quality of the homes at Crestwood and ended with the exhortation, ‘‘Exercise caution before signing an agreement of sale. Protect the American dream—don’t buy at Crest- wood.’’ The number of handbillers is not in the record. The handbillers were peaceful. At times, they were within 5 to 10 feet of the door of the model. At some point during that day, the Respondent told the handbillers that they were on private property and directed them to leave. The handbillers refused to do so. An agent of the Respondent then called the police, who at first declined to take action against the handbillers. After the Respondent’s president contacted the district attorney’s office, however, the police ad- vised the union representatives that they were subject to removal and arrest if they did not leave the prem- ises. The police then allowed the union representatives to leaflet on the shoulder of Oxford Valley Road. After April 1, the Union twice attempted from the shoulder of Oxford Valley Road to leaflet vehicles as they entered the project. On both occasions, traffic was slowed on Oxford Valley Road. The Union has never picketed at Crestwood. B. Issue The issue is whether the Respondent violated Sec- tion 8(a)(1) of the Act by refusing to permit the union representatives to engage in handbilling of potential home buyers on the Respondent’s property and by calling the police to have the handbillers removed from the property. C. Contentions of the Parties Before the Supreme Court issued its decision in Lechmere, the General Counsel and the Union con- tended that, under the method of analysis set forth in Jean Country, 291 NLRB 11 (1988), the union rep- resentatives should have been afforded access to the Respondent’s property for the purpose of handbilling. The Respondent argued that, under a proper reading of Jean Country, it was not required to allow the union representatives on its property. Since Lechmere issued, the General Counsel has taken the position that, under the Supreme Court’s 125 LESLIE HOMES, INC. 2 The Respondent did not file a supplemental brief on the applica- bility of Lechmere to this case. 3 See Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, 436 U.S. 180, 206 fn. 42 (1978); Red Food Stores, 296 NLRB 450, 452 (1989). 4 There is no contention that the Respondent lacked a property in- terest in the Crestwood development, or that the handbillers were employees of the Respondent (and thus were not trespassers). Had either of those conditions existed, this would be a different case. See, e.g., Barkus Bakery, 282 NLRB 351 (1986), enfd. mem. 833 F.2d 306 (3d Cir. 1987) (employer’s attempt to eject union organiz- ers from property not its own violated Sec. 8(a)(1)); NLRB v. Bab- cock & Wilcox Co., 351 U.S. 105, 113 (1956) (distinguishing be- tween organizational rights of employees and of nonemployee union organizers). 5 See fn. 4, supra. 6 There is no evidence that the Respondent’s no-access policy was enforced against the Union but not against other solicitors. The Gen- eral Counsel (and, derivatively, the Union) originally argued that the enforcement of the Respondent’s no-trespassing policy chiefly against adolescents, combined with its erection of the more promi- nent no-trespassing sign only after the April 1 handbilling episode, ‘‘suggests that Respondent did not exclude other solicitors prior to that date and that restriction to public access was limited.’’ We de- cline to draw the inference ‘‘suggested,’’ which does not follow from the facts. In any event, neither the General Counsel nor the Union explicitly maintained that the Respondent discriminated against the Union by allowing others to engage in similar distribu- tions. Indeed, had this been the General Counsel’s theory of the case, we presume that he would not have moved to dismiss the com- plaint, since the Court’s holding in Lechmere did not purport to de- tract from its earlier statement in Babcock that ‘‘an employer may validly post his property . . . if he does not discriminate against the union by allowing other distribution.’’ See Davis Supermarkets, 306 NLRB 426 (1992), enfd. on other grounds 2 F.3d 1162 (D.C. Cir. 1993). In short, there is no serious contention, and no evidence, that the Respondent engaged in disparate treatment of the union rep- resentatives. analysis in that case, the Union was not entitled to ac- cess to the Respondent’s property. The Union contends that, because Lechmere was concerned with union ac- cess to an employer’s property for organizing pur- poses, the Supreme Court’s decision does not apply to this case, which involves ‘‘area standards’’ handbilling of consumers rather than organizational activity. Ac- cordingly, the Union argues that the Board should apply the Jean Country analysis, under which, in the Union’s view, the Respondent violated the Act as al- leged.2 D. Discussion The problem presented by this case is a familiar one. The union representatives attempted to engage in peaceful ‘‘area standards’’ handbilling, an activity that is protected by Section 7 of the Act.3 The Respondent, by virtue of its controlling interest in the condominium association that owns the developed common portions of Crestwood and its sole ownership of the undevel- oped common areas, as well as the street contiguous to the model home, has a legitimate private property interest in the Crestwood development.4 The issue was joined when the Union attempted to assert the Section 7 right in contravention of the Respondent’s right to prevent strangers from trespassing on its property. The seminal authority in this area is the Supreme Court’s decision in Babcock & Wilcox.5 The issue in Babcock & Wilcox was whether, and under what cir- cumstances, an employer is required to allow non- employee union representatives access to the employ- er’s property for the purpose of organizing his employ- ees. The Court held that: [A]n employer may validly post his property against nonemployee distribution of union lit- erature if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message and if the employer’s notice or order does not dis- criminate against the union by allowing other dis- tribution.6 . . . Organization rights are granted to workers by the same authority, the National Gov- ernment, that preserves property rights. Accom- modation between the two must be obtained with as little destruction of one as is consistent with the maintenance of the other. . . . [W]hen the in- accessibility of employees makes ineffective the reasonable attempts by nonemployees to commu- nicate with them through the usual channels, the right to exclude from property has been required to yield to the extent needed to permit commu- nication of information on the right to organize. . . . [I]f the location of a plant and the living quarters of the employees place the employees be- yond the reach of reasonable union efforts to communicate with them, the employer must allow the union to approach his employees on his prop- erty. [351 U.S. at 112–113.] Although the Section 7 activity involved in Babcock & Wilcox was organizational, the Court in later cases indicated that the ‘‘accommodation’’ analysis in Bab- cock should be applied in other contexts as well. See Hudgens v. NLRB, 424 U.S. 507, 522 (1976) (lawful economic strike activity); Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, supra, 436 U.S. at 207 (area standards picketing). In Hudgens, the Court stated that: The locus of that accommodation, however, may fall at differing points along the spectrum depend- ing on the nature and strength of the respective Section 7 rights and private property rights as- serted in any given context. In each generic situa- tion, the primary responsibility for making this ac- 126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 7 In Hudgens, the Sec. 7 activity was picketing in support of an economic strike by employees of one of the tenants of a shopping mall (albeit employees at the employer’s warehouse at a different lo- cation, not of its store at the mall). 8 The Court quoted the following language from Sears, Roebuck & Co., supra, 436 U.S. at 205: ‘‘That the burden imposed on the union is a heavy one is evidenced by the fact that the balance struck by the Board and the courts under the Babcock accommodation prin- ciple has rarely been in favor of trespassory organizational activity.’’ 502 U.S. at 535. commodation must rest with the Board in the first instance. [424 U.S. at 522; citations omitted.]7 In Jean Country, the Board set forth an analytical framework to be used in determining the accommoda- tion to be made in all access cases. The Board an- nounced that in each case it would consider the strength of the employer’s property right, the centrality of the Section 7 right, and the availability of reason- able alternative means for the dissemination of the union’s message: [I]n 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 consid- eration of the availability of reasonably effective alternative means as especially significant in this balancing process. [291 NLRB at 14.] In formulating its Jean Country analysis, the Board adverted to the Supreme Court’s statement in Hudgens, quoted above, to the effect that ‘‘there is a ‘spectrum’ of Section 7 rights and private property rights and that the place of a particular right in that spectrum might affect the outcome of a case.’’ Id. at 13. Thus, the Board announced that when the employer has particu- larly compelling reasons for denying access and the Section 7 right asserted is less central than the right of employees to organize or protest unfair labor practices, ‘‘we may more readily find that [nontrespassory] means of communication . . . constitute a reasonable alternative.’’ Id. The Supreme Court in Lechmere rejected the Board’s Jean Country approach. The Court’s majority found that the Board, in relying on the quoted lan- guage in Hudgens, had misconstrued Babcock & Wilcox. According to the Court, Babcock stands for the proposition that ‘‘Where reasonable alternative means of access exist, Section 7’s guarantees do not authorize trespasses by nonemployee organizers, even (as we noted in Babcock . . .) ‘under . . . reasonable regula- tions’ established by the Board.’’ 502 U.S. at 537. Thus, the Court said that Hudgens, ‘‘did not purport to modify Babcock, much less to alter it fundamentally in the way Jean Country suggests.’’ Id. at 538. The Court then stated: To say that our cases require accommodation be- tween employees’ and employers’ rights is a true but incomplete statement, for the cases also go far in establishing the locus of that accommodation where nonemployee organizing is at issue. So long as nonemployee union organizers have rea- sonable access to employees outside an employ- er’s property, the requisite accommodation has taken place. [Emphasis added.] It is only where such access is infeasible that it becomes necessary and proper to take the accommodation inquiry to a second level, balancing the employees’ and em- ployers’ rights as described in the Hudgens dic- tum. [Id.] The Court found that Jean Country impermissibly re- cast, as a ‘‘multifactor balancing test,’’ the general rule set out in Babcock that ‘‘an employer may validly post his property against nonemployee distribution of union literature.’’ Id., quoting Babcock & Wilcox, 351 U.S. at 112. Thus, the Court explained, the threshold inquiry in Lechmere was whether Babcock’s inaccessibility ex- ception could properly be applied in that case. Con- trary to the Board, the Court found that the exception was not applicable. It emphasized that the exception to Babcock’s rule is a narrow one. It does not apply wherever nontrespassory access to employees may be cumbersome or less-than- ideally effective, but only where ‘‘the location of a plant and the living quarters of the employees place the employees beyond the reach of reason- able union efforts to communicate with them. [502 U.S. at 539; emphasis in the original; quoting Babcock & Wilcox, 351 U.S. at 113.] The Babcock exception, said the Court, was designed to safeguard the rights of ‘‘those employees who, by virtue of their employment, are isolated from the ordi- nary flow of information that characterizes our soci- ety,’’ such as employees in mining camps, logging camps, or mountain resort hotels. Id. at 539–540. (Ci- tations omitted.) The union’s burden of establishing such isolation is a heavy one,8 the Court continued, and cannot be satisfied ‘‘by mere conjecture or the ex- pression of doubts concerning the effectiveness of non- trespassory means of communication.’’ Id. at 540. Turning to the facts of the case before it, the Court in Lechmere found that the union had failed to carry its burden. First, the Court held that because the em- ployees who were the focus of the union’s organizing efforts did not live on Lechmere’s property, they were presumptively not beyond the reach of the union’s message. Id. Nor had the union rebutted that presump- tion. The employees’ accessibility, the Court found, was indicated by the union’s having contacted a sub- 127 LESLIE HOMES, INC. 9 The Court recognized, however, that success (or the lack of it) may be relevant in determining whether reasonable access exists. 502 U.S. at 540–541. 10 See Sears, Roebuck & Co., 436 U.S. at 205 fn. 41. 11 The dissent asserts that the Court in Lechmere was concerned only peripherally with private property rights. See Loehmann’s Plaza II, supra at 119 (Members Browning and Truesdale, dissenting). While it is true that we are construing the rights of employees under Sec. 7 of the Act, the issue before us in these cases is whether the employers violated the Act by preventing individuals who were not their employees from exercising their Sec. 7 rights on the employers’ property. As the Supreme Court put it in Sears, ‘‘The remaining question is whether under Babcock the trespassory nature of the [area standards] picketing caused it to forfeit its protected status.’’ 436 U.S. at 204–205. Indeed, our colleagues themselves would apply an access test in cases like these which ‘‘would, in every case, factor in the nature and strength of the employer’s property interest versus the importance of the Sec. 7 right asserted by the union.’’ Loehmann’s Plaza II, supra at 121 (Members Browning and Truesdale, dissenting). They thus tacitly admit that the construction of employers’ property rights is a critical consideration in these cases because under Babcock, the Board is required to make an ac- commodation between Sec. 7 rights and property rights when private property is the targeted locus of the Sec. 7 activity and persons deemed ‘‘nonemployees’’ by the Court are seeking access. Our colleagues concede that ‘‘the Court in Lechmere did express some concern for private property rights[.]’’ Id. at 119–120. In our view, they understate the case. The Court in Lechmere repeatedly in- dicated concern for employers’ property rights, by stressing the lim- ited circumstances in which those rights may be infringed by non- employee union organizers. See 502 U.S. at 533: ‘‘As a rule, then, an employer cannot be compelled to allow distribution of union lit- erature by nonemployee organizers on his property’’; id. at 535 (quoting Sears with approval): ‘‘While Babcock indicates that an employer may not always bar nonemployee union organizers from his property, his right to do so remains the general rule’’; and id. at 538: ‘‘We reaffirm . . . today . . . Babcock’s general rule that ’an employer may validly post his property against nonemployee dis- tribution of union literature’ (quoting 351 U.S. at 112).’’ stantial percentage of them directly, through mailings, telephone calls, and home visits. Such direct contacts, however, were not the only, or even a necessary, means of communication; ‘‘signs or advertising also may suffice.’’ Declining to pass on the Board’s finding that advertising in local newspapers (which the union had tried) was not reasonably effective because it was expensive and might not reach the employees, the Court found that other means of communication were ‘‘readily available.’’ Thus, the union could have placed signs on the public property abutting Lechmere’s park- ing lot to apprise the employees of the organizing cam- paign. In fact, the union had picketed the entrance to the parking lot for months as employees were arriving at and leaving work. In summary, the Court found that access to employees, rather than success in winning them over, is the critical issue,9 and because the union had failed to identify any ‘‘unique obstacles’’ frustrat- ing access to the employees,10 the employer had not acted unlawfully in barring the union organizers from its property. Ibid. In Lechmere, as we have noted, the Section 7 activ- ity engaged in by the union representatives was organi- zational. In this case, the Section 7 activity is area standards handbilling. We turn now to a consideration of the effect of Lechmere in the present context. At least three issues have been suggested: (1) whether Lechmere applies at all outside the organizing sphere, (2) whether, after Lechmere, the Babcock exception for inaccessible employees may be invoked when the tar- get of the union’s message is the employer’s customers instead of its employees, and (3) assuming the applica- bility of the Babcock exception, whether the Union here carried its ‘‘heavy burden’’ of showing that it faced ‘‘unique obstacles’’ that so frustrated its attempts to reach the customers that it should have been al- lowed to handbill on the Respondent’s premises. 1. Does Lechmere apply to area standards activities? The Union and our dissenting colleagues contend that Lechmere does not apply in the area standards context. They reason that Section 7 protects not only employees’ organizational efforts, but also their right ‘‘to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection,’’ such as the handbilling in this case. The Court in Lechmere held that ‘‘the NLRA confers rights only on employees, not on unions or their nonemployee organizers,’’ 502 U.S. at 532, and reiterated the distinction made in Babcock ‘‘between the organizing activities of employees [to whom Section 7 guarantees the right of self-organiza- tion] and nonemployees [to whom Section 7 applies only derivatively].’’ Id. at 533. The Union and the dis- sent, however, argue that the Court’s rationale applies only in the organizational context, because only in that setting do union representatives who are not employed by the targeted employer possess only ‘‘derivative’’ Section 7 rights. They contend that the handbillers in this case were exercising their own (nonderivative) Section 7 rights, and also represented the Union’s members who, though not employees of the Respond- ent, have exercised their Section 7 right to join a labor organization and to engage in ‘‘other concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection.’’ According to the dissent, ‘‘Lechmere’s reasoning, which limited itself to the self-organizing guarantee of Section 7, does not ad- dress their activities.’’ See Loehmann’s Plaza II, 316 NLRB 109, 116 (1995) (Members Browning and Truesdale, dissenting). We find no merit to this argument. In the first place, given the Court’s concern in Lechmere with protecting employers’ private property rights,11 we can discern no reason to assume that it would apply its reasoning only in organizing cases. It is true, as the Union and the dissent observe, that the Court in Lechmere addressed 128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 See p. 126, supra. In this regard, the Court in Sears observed that ‘‘Even on the assumption that picketing to enforce area stand- ards is entitled to the same deference in the Babcock accommodation analysis as organizational solicitation, it would be unprotected in most instances,’’ 436 U.S. at 206 (fn. omitted), thus suggesting strongly that the accommodation analysis in Babcock (and reaffirmed in Lechmere) is applicable to area standards cases such as these. The dissent suggests that we have inappropriately ignored what it characterizes as Hudgens’ recasting of the Babcock test as applied in the nonorganizational context. Loehmann’s Plaza II, supra at 120 (Members Browning and Truesdale, dissenting). We find no basis for the proposition that Hudgens, at least as construed in Lechmere, recast the Babcock test. In both cases, the Court emphasized the need to seek to accommodate Sec. 7 rights and property rights. In Babcock, the Court struck the balance markedly in favor of property rights in circumstances where nonemployee union agents were en- gaged in the Sec. 7 activity. In Hudgens, the Court suggested that a different balance might be struck in circumstances where, inter alia, the Sec. 7 activity was being conducted by employees of an employer at the shopping center (albeit they were employed else- where). We fail to see how Hudgens gives any support to the Union in this case where, like Babcock and unlike Hudgens, the activity is conducted by nonemployee union agents. 13 Member Cohen notes that the Court’s language set forth above may indeed suggest that trespassory activity which is not aimed at employees is simply barred without exceptions, i.e., it is not subject to the qualifying language of Babcock. See infra at fn. 18 for a full discussion of Member Cohen’s position. 14 The Union’s argument that if Lechmere is applied to cases in- volving nonorganizational activities, employees will be deprived of the right to ‘‘elect or otherwise delegate persons to conduct collec- tive bargaining and other activities on their behalf’’ is plainly with- out merit. Lechmere does not limit the scope of activities protected by Sec. 7; it only discusses the circumstances in which an employer may bar union representatives who are not his employees from car- rying out their activities on the employer’s private property. 15 For that matter, it is arguable that the organizers in Lechmere were exercising their (own) Sec. 7 right ‘‘to . . . assist labor organi- zations’’ in attempting to organize the unorganized, but the Court’s decision can be read as implicitly rejecting that theory as well. 16 This appears to be the Ninth Circuit’s reasoning in John Ascuaga’s Nugget, Inc. v. NLRB, 968 F.2d 991 (1992) (construing Lechmere as affording access rights only to nonemployee organizers who are trying to contact an employer’s employees, not to non- employees attempting to communicate with the employer’s cus- tomers). As we explain below, we find it unnecessary to decide that issue in this case. only the right of nonemployees to organize on an em- ployer’s property, and did not discuss nonemployee ac- cess for other purposes. We find no suggestion in the Court’s opinion, however, that it focused on organizing activities for any reason other than that Lechmere was an organizing case, and that the Court was simply (and prudently) deciding the case before it. Moreover, given the Court’s previous indications that the Babcock ‘‘ac- commodation’’ principle applies in nonorganizational settings,12 we would not expect the Court to limit sharply that principle to organizing cases without some overt signal to that effect. We find no such signal in Lechmere. To the contrary, the Court quoted (and re- affirmed) ‘‘Babcock’s general rule’’ that ‘‘an employer may validly post his property against nonemployee dis- tribution of union literature,’’ 502 U.S. at 538. The Court omitted the arguably qualifying language in Babcock ‘‘if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message[.]’’ 351 U.S. at 112 (emphasis added).13 By phrasing the ‘‘gen- eral rule’’ against trespassory activity without ref- erence to the language arguably limiting it to attempts to reach employees, the Court, if anything, was signal- ling that Babcock should continue to be applied out- side the organizing context.14 The argument advanced by our colleagues and the Union is unsound for another reason. The dissenters urge that nonorganizational activities, such as area standards picketing and handbilling, are protected not by the Section 7 right of self-organization but by ‘‘Section 7’s guarantee of a right not treated in Lechmere—the right of employees ‘to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection.’’’ Loehmann’s Plaza II, supra at 116 (Members Brown- ing and Truesdale, dissenting). As the latter right is not derivative of the rights of the Respondent’s employees, our colleagues contend, it is not reached by the Court’s reasoning in Lechmere; accordingly, under their theory, the Board is free to require access under the ‘‘other concerted activities’’ rubric in nonorganizational cases, even after Lechmere. The obvious problem with that position is that it would seem to have been equally applicable in the or- ganizational setting, where the organizing could be seen as benefitting already organized employees against nonunion competition. Yet the argument can be made that it was implicitly rejected in Lechmere. As our colleagues point out, the Court in Lechmere did not discuss the possibility that the organizers’ activities could be protected under the ‘‘other concerted activi- ties for the purpose of . . . other mutual aid or protec- tion’’ language of Section 7, yet it found that non- employee organizers have only derivative Section 7 rights.15 Thus, it is at least arguable to read the Court’s decision as indicating that the organizers would have fared no better under the ‘‘other concerted activities’’ theory propounded by the dissent. Under that interpre- tation of Lechmere, trespassory nonorganizing activity would never be protected because, as our colleagues rightly point out, the Respondent’s customers whom the nonemployees are attempting to reach with their area standards message have no Section 7 rights cor- responding to the employees’ right of self-organization, and thus the nonemployees would not even have the limited derivative rights possessed by nonemployees in the organizing setting.16 As our colleagues point out, the foregoing reading of Lechmere is not the only possible one. But even if their alternative rights theory is cognizable after Lechmere, our colleagues fail to explain why the Bab- 129 LESLIE HOMES, INC. 17 Central Hardware Co. v NLRB, 407 U.S. 539 (1972). 18 For the purposes of deciding this case, Member Cohen agrees that Lechmere’s strict test for organizational activity applies to area standards activity as well. However, he wishes to express his view that the test for area standards activity may well be even more strict than that for organizational activity. In this regard, Member Cohen notes the Supreme Court’s observation that area standards activity may be entitled to lesser protection than organizational activity. The latter is at the very core of Sec. 7; the former, while protected, does not lie at the core of Sec. 7. See Sears at fn. 42. Further, organiza- tional activity is aimed at the employees of the employer-property owner. Area standards activity is on behalf of employees elsewhere. It therefore lacks a ‘‘vital link’’ to the employees on the property. Id. Because of these considerations, the Supreme Court has asserted its serious doubt as to whether trespassory area standards activity is entitled to the limited protection afforded to trespassory organiza- tional activity. Further, the Ninth Circuit has suggested that the Lechmere/Babcock exception does not apply to trespassory activity aimed at the public rather than at employees. John Ascuaga’s Nug- get, supra. Because the Union’s activity in this case did not fall within the Lechmere/Babcock exception, Member Cohen does not resolve the issues discussed above. However, he believes that there is substantial support for the argument that the exception should not be applied to trespassory area standards activity. Finally, Member Cohen notes that the dissenters rely on the dis- tinction between the organizational activity in Lechmere and the area standards activity herein. Based on the considerations set forth above, Member Cohen suggests that the distinction cuts with greater force against the position of the dissenters than it does in their favor. 19 The Court in Lechmere held that, in the organizing context, if employees are shown to be inaccessible, the accommodation analysis moves to a second level, at which the employees’ Sec. 7 rights are balanced against the employer’s property rights, as indicated in Hudgens 502 at 538. Consequently, even where union organizing is concerned, a showing of employee inaccessibility does not mean, ipso facto, that the employer’s property rights must yield. We as- sume, without deciding, that the same is true in nonorganizing cases. 20 We agree with our dissenting colleagues that whether or not there are reasonable alternative means of contacting a union’s in- tended audience depends in part on the nature of the audience. How- ever, we reject their contention that this principle is a reason why Lechmere should not be extended to nonorganizational union activi- ties. See Loehmann’s Plaza II, supra at 119–120 (Members Brown- ing and Truesdale, dissenting). Lechmere teaches that, where non- employee organizers seek access to an employer’s property to at- tempt to contact the employer’s employees, access need not be af- forded if the union has reasonable alternative means of contacting the employees. We find no reason in Lechmere for not applying that Continued cock analysis, as explicated in Lechmere, should favor access more for nonemployees engaged in non- organizational ‘‘other concerted activities’’ than for nonemployee organizers. That failure is perhaps under- standable in light of Sears’ suggestion that non- employee area standards activities are less favored under the Babcock analysis than nonemployee organi- zational efforts. 436 U.S. at 206 and fn. 42. Our colleagues assert that ‘‘Sears’ access discussion cannot be regarded as conclusive’’ because access was involved only tangentially in a preemption case. Loehmann’s Plaza II, supra at 120 (Members Brown- ing and Truesdale, dissenting). The latter assertion is somewhat startling, given Lechmere’s flat statement that ‘‘If there was any question whether Central Hard- ware17 and Hudgens changed Section 7 law, it should have been laid to rest by Sears[.]’’ 502 U.S. at 534– 535. 2. Is the Babcock exception applicable to area standards activities? The Ninth Circuit has construed the Supreme Court’s decision in Lechmere to mean that the Babcock exception, providing for access by union organizers to isolated employees, does not apply to union representa- tives who are attempting to contact, instead of an em- ployer’s employees, an employer’s customers. John Ascuaga’s Nugget v. NLRB, supra. This is a question we need not and do not decide today because, as we discuss below, we find that, under Lechmere, the Union did not demonstrate that the Respondent’s cus- tomers were so isolated that the handbillers should have been permitted to approach them on the Respond- ent’s premises.18 3. Did the Union have reasonable alternative means of contacting the Respondent’s customers? We assume, without deciding, that Lechmere permits a union to show that an employer’s customers are not reasonably accessible by nontrespassory methods, and that union representatives therefore may be entitled to engage in area standards activities on the employer’s property.19 In Lechmere, however, the Supreme Court made it clear that, even in organizing cases, Babcock’s inaccessibility exception applies only in unusual cir- cumstances. As we noted above, the Court stated that the Babcock exception applies only when, because of the location of a plant and the living quarters of the employees, the employees are beyond the reach of the union’s reasonable attempts to communicate with them. 502 U.S. at 539. The union has the heavy bur- den of establishing that the employees, because of the nature of their employment, are ‘‘isolated from the or- dinary flow of information that characterizes our soci- ety.’’ Id.at 540. Unless the Union can show that ‘‘unique obstacles’’ exist that frustrate access to the employees, the employer is entitled to bar the union from his property. Id. at 93. Employees who do not re- side on the employer’s property are presumptively not beyond the reach of the union’s message. Id. at 540. We assume, for purposes of deciding this case, that the same principles apply when a union seeks access to an employer’s property to communicate an area standards message to the employer’s customers. Applying the foregoing principles to the stipulated facts of this case, we find that the Union has not shown that the Respondent’s customers are ‘‘isolated from the ordinary flow of information that character- izes our society,’’ or that it lacks reasonable alternative means of contacting them.20 We arrive at that finding 130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD same analysis when the union is attempting to contact individuals who are not the employer’s employees. In either case, the Board must determine whether, given the nature of the audience, reasonable alternative means exist for reaching it with the union’s message. The same means may be reasonable for some audiences but not for oth- ers. Member Cohen does not join in those portions of the opinion infra which attempt to set forth the existence of alternatives available to the Union. In his view, it is sufficient, and more consistent with Babcock and Lechmere, to say only that the General Counsel has not met his burden of showing the absence of alternatives available to the Union. 21 As the Union’s actions were directed at the Respondent’s own hiring practices and employment conditions, rather than those of an- other employer, the Respondent is not a neutral, but the ‘‘primary’’ employer. The Union thus would not risk being found to have vio- lated Sec. 8(b)(4)(B) of the Act by picketing the Respondent instead of handbilling. See NLRB v. Retail Clerks Local 1001 (Safeco), 447 U.S. 607, 609 and fn. 3 (1980). 22 Our dissenting colleagues, however, contend that the Union’s message was too detailed to be contained on a picket sign. We reject that contention (which, as we have noted, the Union does not raise on its own behalf). In Red Food Stores, supra, the Board found that a similar area standards message essentially was a request not to pa- tronize, which was readily conveyed by pickets. 296 NLRB at 453. As the Union never picketed at the Crestwood property, it failed to demonstrate that its essential message could not be conveyed on a picket sign. Cf. Loehmann’s Plaza I, 305 NLRB 663, 667 (1991), in which the union did picket and in which no exceptions were filed to the judge’s finding that the area standards message on the union’s handbills could not be contained on a picket sign. Sentry Markets v. NLRB, 914 F.2d 113 (7th Cir. 1990), cited by our colleagues, did not involve an area standards message and thus is inapposite to this case. That the Union added to the complexity of its essential message by including a number of apparently speculative suggestions about workmanship at Crestwood does not require a different result. Our colleagues cite no authority for the proposition that a union may gain access to an employer’s property, when access otherwise would be denied, merely by complicating an essentially simple message to the point at which it can no longer be rendered on a picket sign. 23 The dissent contends that exit handbilling would be ineffective because some customers may have bought condominiums on their first visit, and others may have returned after having visited Crest- wood on a previous occasion when the Union had no representatives present. Whatever the factual merits of these arguments may be (and the second suggests that the Union should be rewarded with access for being less than vigorous in attempting to communicate its mes- sage), they fail to take into account the fact that the Union has not shown that it could not convey its message, by means of stationary signs or picket signs on public property, to customers as they enter the Crestwood development. In any event, Lechmere plainly estab- lishes that a union may be found to have reasonable nontrespassory access to its intended audience even if it is not able to contact all, or even most, members of that audience. 24 Consequently, it would not have been necessary to stop every- one leaving the Respondent’s property, but only those who had been seen leaving the model home. for two reasons. First, the Union has not shown that it could not have adequately conveyed its message to the Respondent’s customers by picketing or placing stationary signs on the public property between Oxford Valley Road and the Crestwood development.21 (The Union never attempted to picket on the public prop- erty, and it does not contend that the essential message contained on the handbills could not have been satis- factorily rendered on picket signs.)22 As we have noted, the public property extends the entire width of the Respondent’s property, and abuts Leslie Drive and Norwalk Drive—the only two routes an automobile can take into the development. The public property is 10 feet wide, including a 4-foot wide sidewalk where pickets could safely patrol. In addition, although the speed limit on Oxford Valley Road is 45 miles per hour, it is apparent that cars turning into the develop- ment at either Leslie Drive or Norwalk Drive would have to slow down considerably to execute what is ap- proximately a 90-degree turn into the Crestwood prop- erty at either point, and also (in the case of cars turn- ing right into the development) normally would move onto the shoulder, nearer to any signs the Union might place on the public property. It appears, then, that ei- ther stationary signs or picket signs on the public prop- erty near the entrances to the property would be clearly visible to drivers slowing down to enter the Crestwood development. There is nothing in the stipulated record to suggest that picketing, or the placement of station- ary signs, on the public property would have posed any safety hazard to either the union representatives or to passing motorists. We further find that the Union failed to demonstrate that it could not have communicated its message to po- tential home buyers as they left the Crestwood prop- erty. We first observe that the condominiums sold on the Respondent’s premises differ markedly, in the sheer size of the investment being contemplated, from groceries, blue jeans, and other nondurable items sold at retail. Experience thus supports the Respondent’s common sense argument that potential home buyers are likely to engage in extensive comparison shopping before they make a purchase. The Respondent’s poten- tial buyers generally will not have already made their purchases at the time they leave the premises, and the Union therefore can effectively approach them as they leave, rather than only as they enter.23 In addition, the record establishes that union rep- resentatives stationed on public property outside the Leslie Drive entrance would have a clear, unobstructed view of the model home and the parking area in front of it. It would have been possible for those representa- tives to watch the parking area to identify the cars driven by individuals visiting the model home, and then to attempt to give them handbills as they left the development.24 In this regard, it should be recalled that there is a stop sign at the Leslie Drive exit from the Crestwood property, the closest exit to the model home. It therefore would not have been necessary for union representatives wishing to handbill exiting cus- tomers to attempt to flag down moving cars or to sta- tion themselves in the middle of the intersection; they could have remained on the sidewalk or on the grassy 131 LESLIE HOMES, INC. 25 Of course, any picket signs or stationary signs placed near the exit also would be plainly visible to drivers who had stopped for the stop sign. The dissent argues that motorists who stop for the stop sign are still on Crestwood property. Although it appears that the stop sign is located a few feet inside the property line, a motorist stopped at the stop sign would have to drive forward only those few feet to receive a handbill from an individual stationed on public property. 1 Although the Court stated that ‘‘the constitutional guarantee of free expression has no part to play’’ in resolving conflicts between Sec. 7 rights and private property rights under the Act (Hudgens v. NLRB, 424 U.S. 507, 521 (1976)), this does not mean that it is inap- propriate for the Board to consider constitutional principles, particu- larly those inherent in the First Amendment, when devising a statu- tory standard for access issues. Cf. NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969). (In balancing employer and employee rights in a union organizational campaign, the Board must ‘‘take into ac- count’’ the fact that ‘‘an employer’s [First Amendment] free speech right to communicate his views to his employees,’’ as embodied in Sec. 8(c) of the Act, ‘‘cannot outweigh the equal [First Amendment] rights of the employees to associate freely, as those rights are em- bodied in § 7 . . . .’’) areas next to Leslie Drive and approached the cars as they stopped for the stop sign.25 Nor would the use of this tactic have required the handbillers to run continu- ously back and forth between the public property and the customers’ cars; the parties have stipulated that even on Sundays, usually the busiest day of the week, only 12 to 35 persons visit the model home, between 10 a.m. and 6 p.m.—an average of, at most, between 4 and 5 per hour. Under these circumstances, we find that approaching individuals who had visited the model home as they left the Crestwood property would have been a reasonable alternative to handbilling on the property itself. For all the foregoing reasons, we find that reason- able alternative means were available to the Union for communicating its area standards message to potential customers of the Respondent, and, a fortiori, that it has failed to carry its burden of showing the absence of such means. We therefore find that the Respondent did not act unlawfully by ordering the union representa- tives to leave its private property and by calling the police to have them removed, and we shall dismiss the complaint. 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 Metropolitan District Council of Philadelphia & Vicinity, United Brotherhood of Carpenters and Joiners of America, Inc. is a labor organization within the meaning of Section 2(5) of the Act. 3. By ordering union representatives to leave and calling the police to have them removed from its prop- erty at Crestwood Condominiums, Bristol, Pennsyl- vania, the Respondent did not interfere with the exer- cise of Section 7 rights in violation of Section 8(a)(1) of the Act. ORDER The complaint is dismissed. CHAIRMAN GOULD, concurring. I join Members Stephens and Cohen in dismissing the complaint in this case and add the following addi- tional comments. The place of work is the one area where workers come together on a daily or regular basis and have an opportunity to share views and to discuss matters such as employment conditions and the question of whether they desire to be represented by a union through the collective-bargaining process, and to ‘‘learn from oth- ers the advantages of self-organization . . . .’’ Justice White dissenting in Lechmere, Inc. v. NLRB, 502 U.S. 527, 543 (1992). The same holds true of the union’s ability to communicate its message to the consuming public when the latter is present on private property to which the public has access.1 As Justice Frankfurter noted in a concurring opinion, title to property does not properly control this issue. Marsh v. Alabama, 326 U.S. 501, 511 (1946). This view, expressed within the context of constitutional litigation, has always seemed to me to be relevant to the issues relating to the competing interests of the right to organize, to learn from others, and to commu- nicate to the public, on the one hand, along with the employer’s legitimate interest in its property. Gould, The Question of Union Activity on Company Property, 18 Vand. L. Rev. 73 (1964); Gould, Union Organiza- tional Rights and the Concept of ‘‘Quasi Public’’ Property, 49 Minn. L. Rev. 506 (1965). Cf. Bok, Re- flections on the Distinctive Character of American Labor Laws, 84 Harv. L. Rev. 1394 (1971). Regrettably, however, the majority opinion of the Supreme Court in Lechmere resolves the issue defini- tively. I am, of course, bound by the Supreme Court’s view of this matter and, like the majority, I am of the view that Lechmere creates no distinction and sends no ‘‘signal’’ that union efforts to reach customers and the public ought to be treated differently from the initia- tives undertaken in Lechmere itself. Under the cir- cumstances of this case, the reasoning employed in Lechmere applies, and, therefore, I am required to join and concur in the majority opinion. If there is to be a different result, it must come from the President and the Congress and not the Board. MEMBERS BROWNING AND TRUESDALE, dissenting. Contrary to our colleagues, we would find that the Respondent violated Section 8(a)(1) of the Act by interfering with the Union’s peaceful distribution of handbills in front of the Respondent’s model home ad- vising potential purchasers that the Respondent did not 132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD pay the carpenters it employed prevailing wages and benefits. In dismissing the complaint, our colleagues erroneously extend Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), to nonorganizational activity, such as the area standards handbilling involved in the instant case. In our joint dissent in Loehmann’s Plaza II, 316 NLRB 109 (1995), issued today, we discussed in detail the many flaws we find in the majority’s approach. We will not repeat that entire discussion here, but rather we will summarize below the principles we consider controlling and will then apply those principles to the facts of this case. I. We stated in our Loehmann’s Plaza II dissent that Lechmere must be understood in its setting. Lechmere presented the question whether the employer violated Section 8(a)(1) by denying nonemployee union rep- resentatives access to its property for the purpose of persuading the employer’s unorganized employees to select the union as their bargaining representative. Lechmere’s holding is explicitly limited to ‘‘non- employee organizational trespassing,’’ 502 U.S. at 536, and its rationale is entirely dependent on the existence of organizational activity. The Lechmere Court focused on the Section 7 right to self-organization guaranteed to employees. Non- employee union organizers do not themselves possess this Section 7 right. Rather, Section 7 applies ‘‘only derivatively’’ to nonemployee union organizers be- cause their role is essentially one of communicating in- formation to the unrepresented employees. Id. at 533. However, where, as in Loehmann’s Plaza II and the instant case, nonemployee union representatives are en- gaged in area standards protests and appeals to the public, a different Section 7 right is involved (the right to engage in concerted activity for mutual aid and pro- tection). In this context, the rights of the union rep- resentatives are not derivative of those of the audience they are trying to reach. ‘‘Rather, the rights of non- employee union representatives engaged in non- organizational Section 7 activities are their own rights or those that arise from their role as agents of employ- ees who have already exercised their Section 7 right to select a labor organization as their representative.’’ Loehmann’s Plaza II, supra at 116 (dissenting opinion) (emphasis added). Therefore, Lechmere’s emphasis on derivative rights is wholly inapposite. In addition, we pointed out in our Loehmann’s Plaza II dissent that Lechmere’s rationale is largely grounded on the finite and easily identifiable nature of the audi- ence that the nonemployee organizers were attempting to reach. The Court’s analysis simply does not apply when the intended audience cannot be readily identi- fied and is geographically diffuse, as in the case of a consumer boycott and area standards protest. Accordingly, we stated in our Loehmann’s Plaza II dissent that we would limit the Lechmere access analy- sis ‘‘to the circumstances to which the Court limited it in the Lechmere case itself: access by union organiz- ers to an employer’s property for the purpose of orga- nizing that employer’s employees.’’ Id. at 119. In other access cases, we would apply the following test: [W]e would seek to determine in every case in- volving union protests which are directed at pur- poses other than organizing the employees of the employer on whose property the union is seeking access, whether the union representatives or mem- bers had reasonable alternative means of commu- nicating their message to their intended audience. In making these determinations, we would con- sider the nature of the audience to whom the mes- sage is targeted and the impediments which the union faces in getting its message to that audience without the access to the property which it is seeking. In addition, we would, in every case, fac- tor in the nature and strength of the employer’s property interest versus the importance of the Sec- tion 7 right asserted by the union. This is similar to the analysis which the Board applied to union protests which were directed at either the general or the consuming public prior to its Jean Country [291 NLRB 11 (1988)] analysis, and prior to Lechmere. [Id. at 121.] II. Turning to the facts of the instant case, the parties stipulated that the Respondent is the builder and devel- oper of Crestwood Condominiums (Crestwood), a 288- unit residential condominium development located in Bristol, Pennsylvania. The Respondent owns the unde- veloped common areas and the controlling interest in the condominium association, which, in turn, owns the developed common areas. No public streets run through Crestwood; the two streets within the project, Leslie Drive and Norwalk Drive, are privately owned by the condominium asso- ciation. Only one public street borders Crestwood: Ox- ford Valley Road, a two-lane thoroughfare that runs parallel to the project’s southern border and has a 45- mile-per-hour speed limit. From Oxford Valley Road, automobiles may enter Crestwood one of two ways: (1) at the Leslie Drive entrance (the main entrance); or (2) at the Norwalk Drive entrance. Crestwood’s model home is located about 225 feet from the intersection of Oxford Valley Road and Les- lie Drive. The model home is open 7 days a week from 10 a.m. to 6 p.m. Construction of Crestwood’s first 50 units was per- formed by union carpenters employed by a subcontrac- tor. Thereafter, however, the Respondent hired car- 133 LESLIE HOMES, INC. 1 See the Board’s original decision in Loehmann’s Plaza I, 305 NLRB 663, 667 (1991), in which the Board similarly found that a detailed area standards message set forth in a union leaflet ‘‘could not be fully contained on a picket sign.’’ See also Sentry Markets v. NLRB, 914 F.2d 113, 117 (7th Cir. 1990) (‘‘picket signs could not contain all the information the Union wished to disseminate’’). In concluding otherwise, the majority errs in belittling the informa- tion the Union sought to communicate and in reading too much into Red Food Stores, 296 NLRB 450 (1989), a case that is factually dis- tinguishable. In Red Food Stores, unlike here, the union handbilled and picketed at the public perimeters of the respondent’s stores for Continued penters directly and did not pay them prevailing union wages or benefits. On April 1, 1990, union representatives engaged in peaceful handbilling on the walkway leading to, and on the sidewalk in front of, the Crestwood model home. The handbill stated: -- This Is An Appeal To The General Public -- LESLIE HOMES, INC. Employs foreign/immigrant workers at CREST- WOOD, who are paid substantially less than the prevailing wage and benefit standards in the area. LESLIE HOMES, INC. is destroying the fair wages and living standards of area tradesmen who return their earnings to the local economy by pur- chasing goods, services and housing, and by pay- ing local and federal taxes. The great AMERICAN dream is fulfilled with the purchase of a home! Ask Yourself These Important Questions Be- fore You Buy At CRESTWOOD . . . Will LESLIE HOMES, INC. Cut-Rate Pay Pol- icy Result In A Discount In Your Purchase Price? Does Cut-Rate Craftsmanship Result From Cut- Rate Wages? Will The Units Be Adequately and Efficiently Heated and Air Conditioned? Will Cracks Appear In The Walls Immediately? Are These Apartments Properly Wired Or Will You Be Forever ‘‘Blowing A Fuse’’? Are The Entry Doors Strong And Secure? Is There Hidden Shoddy Work That Could Cost You Money And Grief After You Buy? EXERCISE CAUTION BEFORE SIGNING AN AGREEMENT OF SALE. Protect the American Dream -- Don’t Buy At Crestwood THE METROPOLITAN DISTRICT COUNCIL OF CARPENTERS OF PHILADELPHIA AND VICINITY Thanks You For Your Support Also on April 1, 1990, the Respondent advised the handbillers that they were on private property and di- rected them to leave the premises, but they refused. The Respondent summoned the Bristol Township Po- lice, who initially concluded that the handbilling was proper and refused to interfere with it. However, the Respondent’s president then telephoned the Buck’s County District Attorney’s Office. Thereafter, the po- lice advised the union representatives that the district attorney had concluded that they were subject to re- moval and arrest if they remained on the property. III. Applying our access analysis to the facts of this case, we would find that the Union had no reasonable nontrespassory means of communicating its area stand- ards protest to its intended audience. The Union’s mes- sage was directed at a diverse population, potential purchasers of Crestwood condominiums, a group which is not readily identifiable and thus could not reasonably be reached away from Crestwood by direct personal contact, telephone, or mail. The Union should not be required to undertake the burden and expense of a public media campaign when there is no reason- able expectation that such a campaign would even reach its intended audience. The majority contends that the Union possessed rea- sonable alternative means of communicating its mes- sage to potential home buyers because it could have picketed or placed signs on the strip of public property between Oxford Valley Road and Crestwood, and could have attempted to give handbills to motorists leaving Crestwood at the intersection of Leslie Drive and Oxford Valley Road. We find these purported al- ternatives illusory and wholly inadequate. The message the Union was attempting to commu- nicate was relatively detailed. The Union sought to give potential purchasers information to guide their de- cision as to whether they should purchase a home from the Respondent. The Union wanted to inform potential purchasers that the Respondent was paying workers on the project below the area standards and that the Re- spondent’s conduct adversely affected other area em- ployees, the local economy, and tax revenues. The Union’s handbill emphasized the importance of the home buying decision. The Union advised the potential purchaser to consider seven specific questions before signing an agreement of sale at Crestwood. The hand- bill concluded with an appeal not to buy at Crestwood and with a statement of the Union’s name. All this information could not be fully contained on a picket sign or other sign that could be read and un- derstood by motorists traveling at 45 miles per hour along Oxford Valley Road or negotiating the approxi- mately 90-degree turn into Crestwood. A more detailed statement, such as the handbill, was necessary to im- part the full message.1 134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD approximately 3 months. Although the union contended that it could not effectively handbill from the perimeters, the Board compared the union’s picket signs to the union’s handbill and found that they ad- dressed the same subjects. The record did not show that customers were unable to read the picket signs as they entered the stores’ park- ing lots. In addition, in Red Food Stores, unlike here, while the pick- eting and handbilling were on going, the union conducted an exten- sive media campaign. The Board emphasized that although it would be ‘‘reluctant to impose the cost of a media campaign on a union, the Union here in fact utilized a media campaign.’’ Id. at 453. On the basis of all these considerations, the Board concluded that the General Counsel did not meet his burden of showing that the alter- natives actually employed by the union were not effective. Contrary to the majority’s apparent contention, Red Food Stores did not establish a broad rule that an area standards message is ‘‘es- sentially simple’’ and can always be contained on a picket sign. As noted above, the Board held to the contrary in the subsequent case of Loehmann’s Plaza I. The majority’s suggestion that the Union could have distributed handbills to prospective home buyers de- parting Crestwood on Leslie Drive is equally unavailing. Although there is a stop sign at the Leslie Drive exit onto Oxford Valley Road, motorists stop- ping there are still on Crestwood property. Thus, handbillers would have to trespass on Crestwood prop- erty in order to handbill such motorists. In addition, union representatives who step into Leslie Drive at the stop sign to proffer handbills to motorists would sub- ject themselves to the danger of being struck by exiting vehicles, particularly because Leslie Drive has two lanes exiting onto Oxford Valley Road (one for vehicles turning right and one for vehicles turning left). A handbiller approaching the driver-side window of a car in the right-turn lane would risk being struck by a vehicle advancing in the adjacent left-turn lane. Similarly, a handbiller approaching the passenger-side window of a car in the left-turn lane would risk being struck by a vehicle advancing in the adjacent right-turn lane. Handbilling motorists leaving Crestwood would also be ineffective because, contrary to the majority, home buyers may well have already made their purchase by that time. These individuals may be purchasing a con- dominium on their first visit or they may be returning to Crestwood after having inspected the project on a prior occasion when no union representative was present. In either case, handbilling such home buyers when they leave Crestwood has little chance of con- veying the Union’s message to them at a time when they might still heed it. The conclusion we would reach is further supported by an examination of the nature and strength of the employer’s property interest versus the importance of the Section 7 right asserted by the Union. The Re- spondent offers condominium units for sale to mem- bers of the public generally. For 8 hours a day, 7 days a week, the Respondent opens to the public the walk- way leading to, and the sidewalk in front of, the model home. Especially in view of the peaceful nature of the handbilling and the total absence of evidence of inter- ference with ingress or egress at the model home, the fact that the public is invited onto the premises signifi- cantly diminishes the strength of the Respondent’s property interest. The majority concedes, as it must, that the area standard activity in which the Union engaged is pro- tected by Section 7 of the Act. Indeed, in our Loehmann’s Plaza II dissent, we cited to and quoted from Giant Food Markets, 241 NLRB 727 (1979), enf. denied on other grounds 633 F.2d 18 (6th Cir. 1980), as a leading case articulating the protected nature of area standards activity and the crucial role it plays in advancing the interests of represented employees. When the union representatives engaged in that activ- ity here, they were exercising their own Section 7 rights and those of the employees whom they are au- thorized to represent. In our view, the interest of the Union and its members in publicizing its assertion that the Respondent was undercutting negotiated area standards outweighs the Respondent’s diminished property interest. IV. In sum, we conclude that neither the use of picket signs or other signs along Oxford Valley Road, nor the handbilling of motorists departing Crestwood, con- stitutes a reasonably effective alternative means for the Union to communicate its message to potential pur- chasers of Crestwood condominiums. In contrast, the Union’s distribution of handbills on the walkway lead- ing to, and on the sidewalk in front of, the Crestwood model home impinged only modestly on the Respond- ent’s property rights, because the union representatives were located in an exterior area to which the Respond- ent invited the public. Accordingly, we would find that the Respondent violated Section 8(a)(1) of the Act by refusing to permit the union representatives to engage in peaceful handbilling at this location and by sum- moning the police to have them removed from the property.