Greyhound Lines, Inc.

1138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Greyhound Lines, Inc.' and Detriot Fast Food Workers, a Council of United Labor Unions. Case 7-CA-17986 20 July 1987 DECISION AND ORDER CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 2 September 1981 Administrative Law Judge Thomas R. Wilks issued the attached decision. The Charging Party filed exceptions and a supporting brief, and the Respondent filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findMgs, 2 and conclusions as modified and to adopt the recom- mended Order. In 1979 and 1980 the Union attempted to orga- nize employees of the Burger King facility owned by Greyhound Food Management located in the bus terminal owned and operated by Respondent Greyhound Lines in Detroit, Michigan. The Union failed to receive a majority of the votes cast in a Board representation election held among Burger King's employees on 22 February 1980, but it thereafter filed timely objections to the election as well as unfair labor practice charges against Burger King. On 25 June 1980 the Regional Director for Region 7 issued an amended complaint in the unfair labor practice case and an order consolidat- ing it with the representation case. 3 Following issu- ance of the complaint against Burger King, the Union demanded immediate recognition and bar- gaining to begin on 2 July 1980. When Burger The name of the Respondent appears as amended at the hearing. 2 The Charging Party has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 Fid 362 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing the findings. In sec. III, par. 2, of his decision, the judge inadvertently referred to the date the Charging Party Med a petition for certification as 10 Decem- ber 1977. The correct date is 10 December 1979. In sec. III, par. 13, of the judge's decision, the sentence beginning "There is no evidence to indicate what portion of Respondent's custom- ers consists of off-the-street traffic" should read "There is no evidence to indicate what portion of Burger King's customers consists of off-the- street traffic." 3 In the unfair labor practice proceeding emanating from Burger King's campaign conduct, the General Counsel sought a bargaining order as a remedy for Burger King's unlawful conduct. On 30 September 1981 the Board issued its decision in Burger King, 258 NLRB 1293 (1981), enfd. mem. sub nom. NLRB v. Greyhound Food Management, 709 F 2d 1506 (6th Cir. 1983), in which it granted the General Counsel's request for a bargaining order. King refused to bargain, the Union began picketing the Respondent's Detroit terminal on 3 July 1980. The Respondent's terminal had three pedestrian entrances and a bus entrance and exit. The main entrance to the bus terminal was located on Con- gress Street. The Burger King had a separate en- trance directly from Congress Street as well as an entrance from inside the terminal. The Union placed pickets at each of the three pedestrian entrances to the Respondent's terminal, at the entrance and exit to the bus drive, and at the entrance to the Burger King restaurant directly from Congress Street. The pickets carried signs and/or distributed leaf- lets urging customers not to patronize Burger King, because Burger King had been found guilty of unfair labor practices by the Board and was un- lawfully refusing to bargain with the Union. At ap- proximately 10:30 a.m., Daniel Cantor, the Union's organizer, and three other non-Burger King em- ployee pickets4 entered the terminal and began picketing and handbilling outside Burger King's terminal entrance. The pickets were almost imme- diately approached by a security guard, who forc- ibly evicted Cantor from the terminal. Cantor reen- tered the terminal and told the Respondent's termi- nal manager that he had a right to picket inside the terminal. Thereafter, Cantor was escorted from the terminal by a Detroit police officer. The pickets re- sumed patrolling outside the terminal for the re- mainder of the day. Cantor testified that approximately 85 percent of Burger King's customers entered the restaurant through the entrance inside the terminal. Burger King's general manager testified that marketing surveys show that 14 percent of Burger King's cus- tomers are customers of the Respondent. He also testified that 60 percent of Burger King's off-the- street customers enter the terminal through the main entrance and then enter the restaurant through its inside terminal entrance, and that 35 percent of the off-the-street customers enter the Burger King through its street entrance. The judge dismissed the complaint. The judge found that the handbilling and picketing inside the terminal was undertaken in furtherance of the Union's attempt to seek recognition and bargaining, but the intended audience was Burger King's cus- tomers, not its employees. He found that although this activity was protected, in order to determine whether this statutory right was preeminent to the Respondent's property right, he was required to ex- 4 The pickets outside the terminal were off-duty Burger King employ- ees, employees of other fast food restaurants, and members of other unions. 284 NLRB No. 123 GREYHOUND LINES 1139 amine whether the inside terminal picketing was necessary. The judge found that there were rela- tively short distances between the street entrance to the terminal and the lobby entrance to the res- taurant and people were not it „Ale terminal long enough to have a diminished awareness of the mes- sage they received from the picketers upon enter- ing the terminal. Thus, the Union's message was not diluted by time or distance. The judge there- fore concluded that it was unnecessary for the Union to augment its exterior picketing by interior picketing in order to convey a meaningful, undilut- ed message to its intended audience. Subsequent to the judge's decision, the Board issued Fairmont Hotel, 282 NLRB 139 (1986), where it held that in cases involving conflicts be- tween property rights and Section 7 rights, the Board's task is "first to weigh the relative strength of each party's claim." The Board stated (id. at 142): If the property owner's claim is a strong one, while the Section 7 right at issue is clearly a less compelling one, the property right will prevail. If the property claim is a tenuous one, and the Section 7 right is clearly more compel- ling, then the Section 7 right will prevail. Only in those cases where the respective claims are relatively equal in strength will effective alter- native means of communication become deter- minative. As noted by the judge, the Union's Section 7 ac- tivity here reflected an unfair labor practice and re- cognitional objective vis-a-vis Burger King's em- ployees. The immediate objective of its activity inside and outside the Respondent's terminal on 3 July 1980, however, was to communicate with Burger King's customers, rather than its employ- ees, and to induce the public to boycott Burger King. Furthermore, the Burger King employees were not themselves on strike or participants in the picketing and handbilling attempted inside the Re- spondent's terminal. The activity inside the termi- nal involved individuals who were not asserting their own Section 7 rights. The strength of the Section 7 rights asserted was further diminished be- cause the picketing took place not on the property of Burger King, the employer with whom the Union had the dispute, but on the property of Greyhound Lines, the Respondent, an employer not involved in any dispute with the Union. Al- though the picketing inside the terminal was not carried on in a disruptive manner, the fact that it was done on the Respondent's property, rather than on Burger King's property, tends to enmesh neutrals in the dispute. Balanced against the Union's less than compel- ling Section 7 right is the Respondent's property right. Here, although the bus terminal is open to the public, the Respondent has an interest in keep- ing its property free from picketing against another employer. The terminal was particularly crowded at the time the picketing occurred because it was the beginning of a holiday weekend. Due to the congested conditions, the Respondettt has an inter- est in controlling the activity taking place inside its terminal. Applying the Fairmont analysis to the facts of this case, the panel members disagree in their initial assessment of the relative weight of employer and employee interests involved. 5 We agree, however, that the Union's Section 7 claim is not clearly more compelling and that, assuming the relative equality of these interests, the General Counsel has failed to prove that the Union did not have reasonable alter- native means to communicate its message to the public. The Union was permitted to conduct its protest at the terminal's outside entrances. Approxi- mately 60 percent of the restaurant's off-the-street customers enter the terminal through the Congress Street main terminal entrance and walk only a short distance through the terminal to the restau- rant's terminal entrance. Another 35 percent of the restaurant's off-the-street customers enter through the restaurant's Congress Street entrance. Thus, the Union's picketing at the terminal's Congress Street entrances would reach a majority of the restau- rant's off-the-street customers. Those restaurant customers who work in the terminal building could also have been reached when they arrived at work that day by the Union's picketing at each of the terminal's exterior entrances. Thus, under the cir- cumstances of this case, the Union was able, by picketing only at the terminal's exterior entrances, 5 Chairman Dotson notes that under the prevailing view of the majori- ty opinion m Fairmont, an initial assessment of the relative weight of competing claims is made without any consideration of whether a union had reasonable alternative means for communicating its message. Where, as here, he would find that the Respondent's property rights outweigh the Union's Sec. 7 claim, it is not necessary to evaluate alternative means and the Board should dismiss the complaint. Assuming arguendo the rela- tive equality of the competmg claims asserted here when initially assessed under Fairmont, the Chairman agrees with the finding that the General Counsel failed to prove that the Union did not have reasonable alterna- tive means to communicate its message. Unlike his colleagues in the Fairmont majority, Member Johansen does not evaluate the Sec. 7 claim apart from the factor of reasonable alterna- tive means of communication. Rather, he views this factor as significant m assessing the nature and strength of the Sec. 7 claim. Fairmont, supra at 143. He agrees, however, that both property and Sec. 7 interests assert- ed in this case are otherwise relatively weak and agrees with both his colleagues that the General Counsel failed to prove that the Union did not have reasonable alternative means of communicating its message to its target audience. Finding that this factor is determinative on these facts, he joins his colleagues m fmdmg that the Respondent's private property interests were not required to yield to the Union's Sec. 7 claim and, accordingly, in dismissing the complaint. 1140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD adequately to communicate its message to the res- taurant's potential customers. We conclude that under the circumstances of this case, the Respondent's property right out- weighs the Union's Section 7 right. Accordingly, we find that the Respondent did not violate Sec- tion 8(a)(1) of the Act by causing the removal of the Union's picketers and handbillers from inside its terminal lobby. We shall therefore dismiss the com- plaint. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. MEMBER STEPHENS, concurring. The facts in this case warrant dismissal of the complaint under both the majority rationale in Fairmont Hotel and my separate concurring opinion in that decision. Accordingly, I join in adopting the judge's order of dismissal. Ellen Rosenthal Esq., for the General Counsel. John L. Johnson, Esq., of Phoenix, Arizona, for the Re- spondent. Chui Karega, Esq., of Detroit, Michigan, for the Charg- ing Party. DECISION STATEMENT OF THE CASE THOMAS R. Witics, Administrative Law Judge. Pursu- ant to an unfair labor practice charge filed by Detroit Fast Food Workers, a Council of United Labor Unions (the Charging Party), against Greyhound Bus Lines, Inc. (Respondent), a hearing in this matter was held May 6, 1981, in Detroit, Michigan, on a complaint issued by the Acting Regional Director for Region 7. On the entire record,' including my observation of the demeanor of witnesses, and consideration of posthearing briefs, I make the following FINDINGS OF FACT I. BUSINESS OF THE RESPONDENT At all times material, Respondent, a California corpo- ration, has maintained its principal office and places of business located at Greyhound Tower, Phoenix, Arizona, and also has maintained a terminal at 130 E. Congress Street, Detroit, Michigan (the Detroit terminal), which terminal is the only facility involved in this proceeding. At all times material, Respondent has been engaged as a common carrier in the interstate and intrastate transpor- tation of passengers and packages via bus. During the / Counsel for the General Counsel's posthearing motion to correct the transcript is approved. Although the transcript in places does not accu- rately reflect statements made by me, the errors do not affect matters of substance and are too numerous to be noted herein. year ending December 31, 1979, which period is repre- sentative of its operations during all times material, Re- spondent, in the course and conduct of its business oper- ations at the Detroit terminal, derived revenues valued in excess of $50,000 from the interstate transportation of passengers and freight. At all times material, Greyhound Food Management, Inc. (Burger King) has been engaged in the business of operating a fast food restaurant under the name and style of Burger King. During the 12-month period ending June 30, 1980, which period is representative of its oper- ations during all times material, in the course and con- duct of its business, Burger King had gross revenues in excess of $500,000 and during the same period of time purchased and caused to be delivered directly to its De- troit restaurant products valued in excess of $50,000 di- rectly from points located outside the State of Michigan. It is alleged and admitted, and I find, that Respondent and Burger King are each employers and/or persons en- gaged in commerce or in an industry affecting commerce within the meaning of Section 2(2), (6), and (7), and Sec- tion 8(b)(4) of the Act. H. LABOR ORGANIZATION Although not admitted, the unrebutted evidence in the record establishes, and I find, that the Charging Party is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issue The issue in this case is whether the Respondent vio- lated the Act on July 3, 1980, by causing the removal of the Charging Party's pickets and handbillers from its De- troit terminal lobby where they had been engaged in picketing and handbilling in furtherance of a labor dis- pute with one of Respondent's terminal tenants, i.e., Burger King. B. Background On December 10, 1977, the Charging Party filed with the Regional Director a Petition for Certification of Rep- resentation for a unit of Burger King employees em- ployed at the terminal restaurant in Case 7-RC-15703. On January 24, 1980, the Regional Director issued a De- cision and Direction of Election in that case, and he later conducted a secret-ballot election on February 22, 1980 Thereafter, the Charging Party filed objections to con- duct affecting the results of the election and unfair labor practice charges in Case 7-CA-17550(l). On June 25, 1980, the Regional Director issued, inter alia, an amend- ed complaint, and an order consolidating it with the rep- resentation case, and sought therein a bargaining order based on alleged unfair labor practices of Burger King, including violations of Section 8(a)(1) and (5) of the Act. The consolidated matter was heard by Administrative Law Judge Harold Bernard Jr. in October and Novem- ber 1980. On May 22, 1981, Judge Bernard issued his de- cision in which he concluded that Burger King had vio- lated the Act and recommended that the Board issue a bargaining order (JD-240-81). GREYHOUND LINES 1141 C. Facts On June 27, 1980, Daniel Cantor, organizing director for the Charging Party, forwarded a letter to Burger King, in which he demanded immediate recognition and bargaining to commence on July 2, 1980. Having failed to obtain compliance with that demand, the Charging Party instituted picketing at the Detroit terminal on July 3, 1980. The terminal building occupies a city block in the downtown Detroit business district. According to the testimony of Terminal Manager Richard DeBrine, the street level of the building is "owned" by the Respond- ent, whereas the upper levels are "wholly owned" by the National Bank of Detroit. There is no testimony for what purpose the bank uses the upper levels, whether bank employees work there or whether there is access to the lobby area from the upper levels. Respondent rents or leases space in the lower level of the terminal to sev- eral other entities. Burger King occupies the northeast corner where it operates its fast food restaurant, which faces the intersection of two streets. Burger King is ac- cessible by a north entrance on Congress Steet, near the northeastern corner of the block. Adjacent to Burger King on Congress Street is the main entrance to the ter- minal. That entrance consists of a wide bank of multiple doors that lead into a small vestibule, which opens into the main lobby area. Inside, Burger King is walled off from the lobby, but is accessible to the lobby by an en- trance at the northwest corner of the restaurant's south and west interior walls. That entrance is also accessible by a long narrow corridor leading from the lobby at the southwest interior corner of the restaurant to a door on the east side of the building on Randolph Street. That corridor is formed by the interior southern wall of the restaurant and a parallel wall on the other side which is occupied by the Respondent's customer ticket windows and ticket purchasers' queues. Inside the terminal on the street level are other tenants consisting of a tailor/valet shop, a travelers aid society office, a weight reducing clinic, a gift shop, and space utilized by a governmental unit, i.e., Wayne County, Michigan. Terminal Manager DeBrine testified that Wayne County used the space "possibly" for county administration. There is no evi- dence that county employees worked in that space, or that any county employee was present on July 3, 1980. The tailor/valet shop, travelers aide office, and gift shop are accessible from the interior lobby. It is not clear how access is gained by remaining tenants. However, there appears to be only three pedestrian entrances to the first level. All lead to the terminal lobby. There is also an en- trance to the terminal lobby area located on the western side of the block on Bates Street via an enclosed corri- dor running about one-third the length of the building. The western section of the lobby consists of benches that occupy space up to the approximate center of the lobby. The southern wall of the entire lobby parallels the interi- or bus driveway. Buses enter the driveway on Randolph Street and exit on Bates Street. Paralleling the bus drive- way on the entire southern side of the building is a motel on Lamed Street. There is no direct access from the motel to the lobby. Baggage handlers and ticket agents work in the lobby. The gift shop is located immediately next to the interior restaurant entrance. At 6 a.m., July 3, 1980, the Charging Party com- menced picketing the main Congress Street entrance, and the other exterior entrances, including the bus entrances and exits. Picketing continued until about 4 or 4:30 p.m. The pickets consisted of off-duty Burger King employ- ees, employees of other fast food restaurants, members of other unions, and other sympathetic nonemployees. No employee failed to perform scheduled work that day. About 20 persons engaged in picketing. At 10:30 a.m., Cantor entered the lobby of the termi- nal with three sympathetic nonemployee pickets. They proceeded to station themselves about 10 feet from the inside terminal lobby entrance to Burger King and pro- ceeded to distribute leaflets to customers approaching and exiting the Burger King lobby entrance. Two of the pickets carried signs bearing various legends, including: "unfair to labor," "Support the Right to Organize," "Union rights are Human Rights." The leaflet set forth that Greyhound Food Management had been found "guilty of numerous unfair labor practices" by the "Na- tional Labor Relations Board," and that it "now violates yet another law by refusing to bargain with the [Charg- ing Party] who represents the workers at the Burger King Restaurant in the terminal." The leaflet also, inter alia, appealed to the reader to support the "Burger King Workers' Union" by not eating at the restaurant. The leaflet was signed by the Charging Party. Cantor testi- fied on cross-examination that although as of July 3, 1980, Burger King had in fact been found guilty of an unfair labor practice by the Board, he considered the action of the Regional Director in issuing a complaint to have amounted to a finding of an unfair labor practice. On July 3, 1980, the terminal was extremely busy with weekend preholiday customers. The waiting area was filled to capacity and waiting passengers were standing about. Normally short ticket lines had on that day en- larged and backed up to the point where customers were standing in proximity to the point of handbilling. There is no evidence that the pickets spoke to any non-Burger King customer, nor that they interfered with the move- ment of any person in the lobby.2 The pickets were almost immediately approached by a security guard employed by the Respondent. The guard phySically ejected Cantor with an effective application of a hilly club to Cantor's throat. Cantor regained his com- posure and reentered the lobby and attempted to resume leafleting with the aforesaid companions. By that time Terminal Manager DeBrine was informed of the inside leafleting and he entered the lobby and encountered Cantor at the area of the leafleting. Converging on the scene were also Burger King's Detroit general manager, Dennis Kadet, and Attorney Ethan Vinson who repre- sented Burger King. Neither Kadet nor Vinson was close enough to overhear any material portion of the conversa- tion that ensued between Cantor and DeBrine. 2 At the exterior restaurant entrance, one picket, for a brief time on one occasion, was seen blocking ingress of a customer by placing a picket sign across the threshold. 1142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD DeBrine testified that he had entered the lobby to in- vestigate what was transpiring; that he was concerned about what might be occurring because of conduct he had observed at the outside picketing, and to prevent any altercation or harassment of Respondent's patrons. It is DeBrine's convincing, detailed, essentially uncontra- dieted testimony, which I credit, that he told Cantor that he was now inside Respondent's place of business, pri- vate property, where he had no need to picket. He asked Cantor to leave. Cantor in a loud voice and admittedly upset after having been prodded at the throat with a billy club, asserted his right to picket in the lobby. De- Brine told Cantor that if he refused to leave, the police would be summoned. Cantor refused. DeBrine informed a Detroit city policeman whom he had summoned that he did not wish the pickets to be present in the lobby. The police officer accordingly removed the pickets whose presence lasted only about 10 minutes. DeBrine testified that he did not want the pickets to remain inside the building because in addition to his fears of the pickets engaging in conduct similar to the outside pickets which will be discussed infra, their presence in the busy, crowded terminal was not conducive to his business Fi- nally, he saw no need for it as the pickets had covered all exterior entrances. ICadet testified that although he was farther from Cantor in the terminal than Debrine and could not hear their conversation, except for certain loud assertions by Cantor of his right to picket inside, he was able to hear a couple of the pickets who were several feet beyond Cantor tell the recipients "don't eat at Burger King, the product is bad." Cantor testified that he heard no such utterance. Vinson was next to Kadet in the terminal. Nei- ther DeBrine nor Vinson testified to having heard such statement. In view of this context and in view of Kadet's lack of certitude and hesitant demeanor, I do not credit this aspect of his testimony. There is no evidence that the pickets inside the terminal engaged in obstreperous behavior or other misconduct. With respect to the activity of the picketing of the ex- terior terminal entrances, Vinson testified credibly that Respondent's pickets called out to bus drivers who were about to drive their buses into the terminal: "park it— stop it—don't go across the lines, we're on strike," and banged on the side of the buses. Furthermore, they ap- pealed to the drivers to compel supervisors to drive the buses into the terminal. Assistant District Manager Doro- thy Yeikowsld s testified that she observed pickets block incoming buses, physically strike buses, board buses, and loudly appeal to the drivers to honor the picket line. Kadet testified that as incoming buses edged past the pickets, he saw pickets bang on the sides of buses and heard them chant: "2-4-6-8- Greyhound Bus negotiate." DeBrine testified that he observed pickets banging on buses and heard them scream epithets at the drivers and chant "2-4-6-8 Greyhound Bus negotiate." I credit the foregoing testimony that was contradicted only to the extent that Canto testified that he did not hear pickets use the word "strike," and that the chant actually was "2-4-6-8 Greyhound must negotiate." Cantor clearly was 3 The transcnpt mispelled her name as Yerkowsi. not able to be present at the bus entrances at all times and in any event, his demeanor was less certain and con- vincing in this regard. The Respondent on July 3, 1980, filed with the Re- gional Director an unfair labor practice charge against the Union concerning the exterior picketing activities di- rected at its employees that it contended constituted un- lawful secondary picketing in Case 7-CC-1113(1). That charge was resolved by a settlement agreement entered into on July 21 and 27, 1980, and approved by the Re- gional Director on July 31, 1980. Cantor testified that the objective of the picketing in the terminal was to compel the Respondent to recognize and bargain with the Charging Party by appealing to Burger King customers to cease doing business with it. Cantor testified that over a prior period of 6 months he had visited the restaurant on 50 to 100 occasions, in the mornings and in the afternoon, at night, and at midday. From inside the restaurant he had obserbed both en- trances. He testified that based on his observation ap- proximately 85 percent of the customers had entered through the inside terminal entrance. He testified that most persons who ate at the restaurant are office work- ers or workers employed within the terminal who enter the inside restaurant entrance. The terminal is surround- ed by highrise, private, and governmental office build- ings. He did not testify what percentage of persons he observed were employees within the terminal. Cantor did not testify about having made any observations of this traffic on July 3, 1980, prior to picketing inside. Kadet testified, without challenge, that marketing sur- veys periodically taken three times a year reveal that only 14 percent of Burger King's customers are patrons of Respondent; and that 60 percent of the off-the-street customers enter by way of the main terminal entrance and 35 percent of off-the-street customers enter by way of the restaurant street entrance. Therefore 60 percent of the off-the-street customers pass through the terminal lobby for a distance of several yards and then enter the restaurant through the internal entrance. Presumably the remaining 5 percent enter from the side doors to the ter- minal. There is no evidence to indicate what portion of Respondent's customers consist of off-the-street traffic and what portion is attributed to persons employed in the terminal by Respondent, e.g., baggage handlers, driv- ers, or by the other building tenants, i.e., valet/tailor shop, gift shop. Cantor testified that he never observed anyone in the traveler's aid office. The inside corner en- trance to the restaurant is diagonally across a small por- tion of the lobby from the large bank of multiple glass doors that make up the main terminal entrance and vesti- bule. Analysis Respondent and the General Counsel cite the Supreme Court's Decision in Scott Hudgens v. NLRB, 424 U.S. 507 (1976) (adopted by the Board at 230 NLRB 414 (1977)), and the Board's decision in Seattle-First National Bank, 243 NLRB 898 (1979), remanded for revision of Order 651 F.2d 1272 (9th Cir. 1980). GREYHOUND LINES 1143 In the Hudgens case the Court considered whether the rights of employees to picket, their employer's store lo- cated in a privately owned shopping center were to be determined under the criteria of the National Labor Re- lations Act, under the first amendment to the Constitu- tion, or a combination of both. In that case employee pickets were engaged in an economic strike. The owner of the shopping center caused the picketing employees to depart by threatening them with arrest. Hudgens argued that the controlling Court decision was found in NLRB v. Babcock & Wilcox, 315 U.S. 105 (1956). In that case, the Court held at 112: An employer may validly post his property against non-employee distribution of union literature if rea- sonable efforts by the union through other available channels of communication will enable it to reach employees with its message. The Court there stated that "accommodation" between "organization rights" and "property rights" "must be ob- tained with as little destruction of one as is consistent with the maintenance of the other." In the .Fludgens case the Board argued that the employer's property rights and employee picketing rights ought to have been measured by the first amendment citing Lloyd Corp. v. Tanner, 407 U.S. 551 (1972). The Supreme Court in Hudgens held that the employees did not have a first amendment right to enter the shopping center for the purpose of advertis- ing their strike against their employer, and that the con- stitutional guarantee of free expression was not applica- ble. The Court therefore held that the rights of the em- ployees were to be determined under the National Labor Relations Act, and that the Board must resolve conflicts between Section 7 rights and private property rights "and to seek a proper accommodation between the two." (Citing Central Hardware Co v. NLRB, 407 U.S. 543 (1972); Babcock & Wilcox Co., supra.) The Court stated that a "proper accommodation" depends on the "content and the context of the section 7 rights being asserted." It is noted that Central Hardware and Babcock & Wilcox in- volved organizational activity by nonemployees on the employer's property, but that in the case before it a lawful economic strike by employees was involved and the property rights infringed upon were not those of the employer of those strikers. The Court remanded the case to the Board in order that the Board consider it under the statutory criteria of the National Labor Relations Act, The Board on remand considered the Court's obser- vation of the distinguishing factors noted by it, but con- cluded that they did not preclude a finding of 8(a)(1) violations. The Board held that economic striking em- ployees were as entitled t , as were the non- employee organizers in Babcock & Wilcox. It held, how- ever, that economic rather than organizational picketing may require a different application of the accommoda- tion principle because of the different purpose of each type of activity. It noted that each activity has a differ- ent intended audience, i.e., in an organizational campaign the employees who are accessible by other means are the object but in an economic strike it is the buying public and the nonstriking employees who form the intended audience. The Board found that it would have been un- reasonably expensive for the Union to reach customers through media advertising, and that requiring the Union to communicate its message from a public area 500 feet away from the store, one of 60 in the center, would have caused the message to be "too greatly diluted to be meaningful." It further found that safety considerations and the "likelihood of enmeshing neutral employers, and the fact that many people become members of the pick- et's intended audience on impulse, all weigh against re- quiring the pickets to remove to public property, or even to sidewalks surrounding the Mall." Additionally, the Board considered that the shopping center was open to the public who were invited to come without express in- vitation to purchase anything in particular in order to en- courage impulse buying. The Board held that the proper- ty rights of the owner must yield to the pickets Section 7 rights. In Seattle-First National Bank, 243 NLRB 898 (1979), the Board was obligated to "balance" the private proper- ty rights of the owner of a 50-story office building and the Section 7 rights of striking employees of a tenant res- taurant who sought to advertise the economic dispute be- tween their union and the restaurant by handbilling inside the building in the 46th floor foyer at the restau- rant entrance at lunchtime and dinnertime hours. The building owner threatened to cause the arrest of the em- ployees. The Union had also stationed pickets on the public sidewalks at every entrance to any exit from the building. The pickets carried placards and distributed leaflets and explained their position to willing listeners. The building owner argued to the Board that the strikers had other available and effective means of communica- tion with their intended audience, and that its office building, which contained professional and commercial clients, was distinguishable from a retail center. The Board found the employees' clearly protected activity, i.e., the communication of their dispute with the patrons of their employer, could not be made effective by picket- ing and handbilling limited to the ground level public en- trances. The Board found that the restaurant was only one of numerous firms and stores in the building and its customers were only recognizable when they entered the restaurant, It further found that a "significant" part of the restaurant's lunchtime patrons worked inside the building, and that they "may enter [the restaurant] many hours after passing the pickets on the sidewalk." It found that other customers may have discovered the existence of the restaurant only after entering the building, or may have decided to have lunch in the building on impulse after entering. The Board decided that the Union's pres- ence in the 46th floor foyer was "essential to its ability to effectively communicate with its intended audience." The Board noted that the handbilling was confined to the 46th floor foyer, which was open to persons desiring to use the restaurant, or to visit a stock brokerage tenant, or to transfer to a highrise elevator, and finally that no misconduct was involved. The Board held that the pri- vate property rights of the building owner must yield to the Section 7 rights of employees, and accordingly that the threat to cause the arrest of employees engaged in 1144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the aforesaid strike activity violated Section 8(a)(1) of the Act. The United States Court of Appeals for the Ninth Cir- cuit sustained the Board's findings (supra 651 F.2d at 1276). The court held: hi the fmal analysis, our approval of the Board's conclusion that pickets should be allowed on the 46th floor rests on the peculiar nature of picketing. Even if the union can adequately inform most of the restaurant's customers of the existence of the strike without stationing picketers on the 46th floor, the union cannot fully implement its section 7 rights without confronting the customers in front of the restaurant. Picketing is more than mere dissemina- tion of the information. "The loyalties and re- sponses evoked by picket lines are unlike those flowing from appeals by printed words." Hughes v. Superior Court, 339 U.S. 460, 465. . . (1950). The court noted: "We do not think the burden imposed on the Union in organizational cases is invariably appro- priate in economic strike activity cases" and "unions should be allowed to picket in support of a strike in an effective manner whenever possible." The Court, howev- er, added: A different accommodation might be appropriate if some activity not at the core of section 7, such as area standards picketing, were at issue. See Sears Roebuck & Co v. Carpenters, 436 U.S. 180, 214. . . (1978) (Powell J., concurring); but cf. Giant Food Markets, Inc. [241 NLRB [727 (1979)] (area stand- ards picketing permitted on private property). The case was remanded to the Board "with instructions that it revise its order" pertaining to the nature and scope of the activity permitted on the 46th floor. In an earlier decision in Giant Food Markets, 241 NLRB 727 (1979), the Board held that the property rights of owners or lessees of a small two-store shopping center must yield to the rights of a union to engage in informational picketing and handbilling primarily aimed at the potential customers of the lessee, who are identifi- able only when they decide to enter the store and who do so often on impulse. Citing Hudgens, the Board distin- guished informational picketing from organizational so- licitation involved in the Babcock & Wilcox and other cases in that the organizational picketing involves a spe- cific audience, i.e., the employees to be organized where other reasonable means of access are available. With re- spect to informational picketing, the Board found that "the intended audience is not readily identifiable until it decides to enter the store and that other such means of communication cannot be considered 'reasonable' in rela- tion to their possible effectiveness." The Board further found that picketing or handbilling at entrances to a parking lot 250 feet away from the store entrance "would too greatly dilute the union's message for it to be meaningful." The Board stated, "This result would follow not only from the fact that Giant is not the only store located at the shopping center, but also because motorists entering the parking lot from the adjoining public road would be more concerned with safely making their entrance than with reading a picketing sign or attempting to receive a handbill at the roadside. The Board also took into account "the likelihood of a union's picketing enmeshing neutral employers in its dispute with a particular store in a shopping center." Further, the Board noted: That the property here is open to the public also distinguishes this case from Babcock & Wilcox and similar cases where the property is fenced off or otherwise closed to the general public. (See Justice Brennan's dissent in Sears, 436 U.S. at 231.) Aside from Respondent's annoyance with the possibility that the picket's activities might have an adverse effect on business at the shopping center, there are no grounds for finding that the picketing is a nui- sance. On review, the United States Court of Appeals for the Sixth Circuit in Giant Food Markets v. NLRB, 633 F.2d 18 (6th Cir. 1980), stated: The situation confronting this Court . . . does not involve a union's attempt to communicate with em- ployees. In this case, the union was engaged in area standards picketing and the intended audience was comprised of consumers and potential patrons. . . . It is. . . beyond dispute that area standards picket- ing is lawful and protected under Section 7 of the Act. . . [Area] standards pickets must be allowed a reasonable means of communicating with the cus- tomers. . . . When the consumers potentially come from a large metropolitan area and cannot be cate- gorized as a specific group patronizing a specific type of store, expensive extensive mass media or mail campai • is should not be required. . . . [The] union should not be forced to incurr exorbitant or even heavy expenses. A mass media campaign would also diffuse the effectivenss of the communi- cation by being physically removed from the actual location of the store whose policies are at issue and would prevent any personal contact between the union and intended audience. The Court, however, concluded that the "crux" of the Board's rationale, i.e., the dilution of message and en- meshing of neutral employers had "the force of logic" but was unsupported by facts in the record. The court noted that no testimony was adduced from pickets at the scene as to the comparative effectiveness of picketing at the store entrance and at the parking lot, and no testimo- ny was adduced as to whether a neutral employer had been enmeshed or to the reasonableness of picketing at the alternative locations, i.e., there was no evidence of traffic flow, congestion in the parking lot, what opportu- nities existed for conversing with consumers in the park- ing lot, or why the union considered parking lot picket- ing to be ineffective. The court accordingly denied en- forcement of the Board's Order. The Respondent herein contends that it properly ex- cluded the Charging Party from its terminal on July 3 GREYHOUND LINES 1145 because first it contends that the picketing was organiza- tional in nature and the Charging Party had complete access to employees by virtue of names and addresses made available to it through the representation case mechanism. Second, it argues that the picketing in the terminal was unlawful because it constituted an extension of unlawful secondary activities that occurred at the ex- terior entrances. Third, it characterizes the picketing as "loud, rowdy, and disruptive" of Respondent's business. Finally, it maintains that picketing in the terminal was unnecessary and could at most have been directed at only a "miniscule percentage" of Burger King's custom- ers. With respect to Respondent's first contention, the handbilling and picketing inside the terminal was clearly undertaken in furtherance of the Charging Party's at- tempt to seek recognition and bargaining as representa- tive of Burger King employees. If that objective consti- tutes "organizational" activity, it does not follow that Babcock & Wilcox criteria automatically applies. The dis- tinctions made in the foregoing Board and court deci- sions between organizational and other types of picketing and handbilling rest not on the characterization of such activity per se, but on the intended audience involved in each type of picketing. Clearly the picketing arid hand- billing by the Charging Party in the terminal was intend- ed to reac,h the primary audience of Burger King cus- tomers. Accordingly, I find Respondent's contention in this regard to be unpersuasive. With respect to the argument that picketing in the ter- minal constituted unlawful secondary activity under Sec- tion 8(b)(4) of the Act, I find it unnecessary to make any evaluation of the nature of the exterior picketing at the bus driveway entrance because I fmd that the interior picketing comprised a separate and distinct episode. The interior picketing was not directed to nor did it involve any neutral employer, employees, or customer of any neutral employer. In regard to the argument that the interior picketing and handbilling was "loud, rowdy, and disruptive of Re- spondent's business," I find the record evidence supports no such conclusion. At most, Cantor spoke in a loud voice in response to DeBrine when Cantor asserted his right to be present and after the billy club incident. There is no evidence of any loud or rowdy behavior di- rected at tenants or customers. Further, there is no evi- dence that the interior picketing disrupted any business activity of the Respondent. DeBrine may have feared that disruption might ensue, but such fears cannot be rea- sonably based on actual conduct within the terminal. Furthermore, the external conduct that caused concern to DeBrine was directed at busdrivers, not at prospective bus ticket purchasers, nor prospective customers of the building's tenants. Therefore, there was no basis for De- Brine to conclude that the pickets were about to inter- fere with Respondent's internal business activities. The only basis to argue internal picket misconduct appears to be an argument not forcefully advanced by Respondent in its brief, that the handbill contained a factual misrepre- sentation. To an attorney or one versed in Board law, the handbill was misleading in that the Regional Director as an agent for the General Counsel does not adjudicate but rather prosecutes unfair labor practices. To a layman, the matter is arguable whether the assertion that Re- spondent was found guilty by the Board rather than by the Regional Director as agent for the General Counsel is a misrepresentation. I do not conclude that the mes- sage in the handbill contains such gross misrepresentation as to deprive the Charging Party Party of rights to engage in activity otherwise protected by the Act. In any event, DeBrine did not base his decision to eject pickets on the content of their message. I conclude that the Union by picketing and handbilling for the purpose of seeking recognition and bargaining during the pendency of its representation petition with the Board and an 8(a)(5) charge constituted protected ac- tivity under the Act. Laborers Local 840 (Bline Construc- tion), 135 NLRB 1153 (1962); Teamsters Local 294 (May & Co.), 199 NLRB 279 (1972). The Charging Party clearly had a right to engage in recognitional picketing and handbilling. Whether its statutory right was preemi- nent to Respondent's property right must be resolved by evaluation of Respondent's final argument that the inter- nal picketing was unnecessary and could have at most been directed to an insignificant portion of persons who entered an internal restaurant doorway from an origin exclusive of the main lobby entrance and external restau- rant entrance. Was the internal picketing necessary in order that the Union convey a meaningful, undiluted message to the prospective customers of the restaurant? The Respond- ent's terminal lobby, though not a shopping center nor office building, was open to the public. There were other shops in the lobby. However, two of those shops, the travelers aide society and the gift shop, appear to cater to Respondent's clientele, and marketing surveys reveal only 14 percent of Burger King's customers are derived from the bus customers. The evidence suggests that be- cause of an immense increase in bus patron traffic, on July 3, 1980, that a greater number of travelers may have patronized the restaurant. The number and percentage of those customers is a matter of speculation. There was no evidence that restaurant patronage was palpably larger on July 3 than during the period of time when Cantor made his earlier observations. There is no evidence how many, if any, weight reducing clinic customers eat at Burger King. There is no evidence that a significant por- tion of Burger King's customers are derived from em- ployees who work in the terminal. There is no evidence that they were not accessible to external solicitations when they arrived for work. Unlike the shopping center cases, there is no evidence that the bus terminal invites the general public to come and browse about in the hope that impulse buying may result, or that alternative picketing sites are located in remote areas. Unlike the Seattle-First National Bank case, this is not a situation where a significant number a cus- tomers or employees of a vast array of commercial ten- ants may after spending many hours within a huge build- ing patronize a restaurant secluded within its recesses often on a subsequent discovery that the restaurant exists. The evidence herein discloses relatively short dis- tances between the street and lobby restaurant entrance, 1146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and that the restaurant is highly visible to the public as it is prominently situated in a large portion of the building facing two public streets. I am unable to fmd that the persons who purchased bus tickets and boarded buses, or those who purchased tickets for future departures or persons greeting arriving passengers, remained in the terminal for so long a period of time as to have a diminished awareness of the message and solicitation tendered to them upon entering the ter- minal. Despite the crowded condition of the terminal and long ticket queues, there is no evidence that bus de- partures were delayed or that any extensive waiting peri- ods were required or that the lines of ticket purchasers did not move expeditiously. Therefore, I am unable to conclude that the Charging Party's messages to and exte- rior confrontations with those persons were diluted by time or distance. With respect to incoming bus passen- gers who likely observed the Charging Party's placards as their buses attempted entry and who may have heard verbal exchanges between the pickets and drivers, there is no indication as to what percentage of those persons, or how many, if any, stopped for a snack before depart- ing the congested terminal. There is no evidence that the number of persons arriving in Detroit for the holiday weekend approximated the large exodus from the city or that it constituted a significant portion of restaurant pa- tronage. With respect to the office workers and others, who constituted the normal "off the street" restaurant clien- tele, all entered the building through an exterior door- way. The vast preponderance entered on Congress Street. Most came through the main entrance. All were accessible to the Charging Party's solicitations as they entered. Certainly, the crowded lobby conditions dis- couraged browsing therein and there is no evidence that they were detained in the lobby before entering the res- taurant. There is no evidence that conditions existed on the sidewalk, which made solicitation hazardous, difficult or inconvenient, e.g., pedestrian traffic, crowds, conges- tion, foul weather. There is no evidence that conditions on the sidewalk were any more congested or crowded than they were in the lobby. I cannot conclude that be- cause a majority of off-the-street customers walked di- rectly through a small portion of the lobby to enter the interior restaurant entrance that the Charging Party's message became significantly less meaningful or diluted by the traversal of the short distances involved. It may have been easier for the Charging party to have more precisely identified the potential customers of the restau- rant who entered at the interior doorway and that loca- tion would have afforded optimum efficiency. However, the Charging Party was not relegated to the exterior access because the Respondent refused to permit interior access. Rather, the Charging Party chose to picket and leaflet within the terminal, as a supplementary action, several hours after it had covered all exterior entrances. The record in this case contains no satisfactory explana- tion about why it was necessary to solicit incoming off- the-street customers twice. Indeed, Cantor proffered no such explanation either to DeBrine or in his testimony in this proceeding. With respect to the suggestion that the alternative picketing and leafleting locations would tend to enmesh neutral persons, thus making internal conduct preferable, there is no evidence that picketing and handbilling inside the terminal in close proximity to Respondent's custom- ers and immediately adjacent to the gift shop with plac- ards bearing generalized slogans, constituted activity any less likely to involve neutrals than did the exterior pick- eting at pedestrian entrances. Moreover, this is not a situ- ation where removal of the interior pickets would have effectuated exterior picketing. There was no choice of al- ternatives involved. The Union sought to effectuate pick- eting and handbilling at all entrances, both exterior and interior. As I understand the relevant court and Board prece- dent, it is not sufficient for the General Counsel to merely demonstrate that the Charging Party was exercis- ing its statutory rights or that it sought to exercise those rights at an optimum location. Rather, a balancing of Re- spondent's private property right with that of the Union's statutory right must be effectuated. Such a bal- ancing can be made only upon a demonstration of need for the Respondent's constitutional property rights to yield the Charging Party's statutory rights. That need must be proven by factual evidence. Herein it was shown that the Charging Party was engaged in protected activi- ty and calculated to supplement its efforts under Board processes to obtain recognition and bargaining. Howev- er, I am unable to conclude that at 10:30 a.m. on July 3, 1980, it was necessary for the Charging Party to aug- ment its public picketing and handbilling by picketing and handbilling within the Detroit terminal in order to convey a meaningful, undiluted message to its intended audience. Accordingly, I conclude that the complaint should be dismissed in its entirety. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 ORDER The complaint is dismissed in its entirety. 4 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the fmdings, conclusions, and recommended Order shall, as provided m Sec. 102.48 of the Rules, be adopted by the Board and all objections to them 'hall be deemed waived for all pur- poses.