Sisters Chicken & Biscuits

796 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Sisters International Inc. d/b/a Sisters Chicken & Biscuits and United Brotherhood of Carpenters and Joiners of America, Local No. 200, AFL- CIO. Case 9-CA-17189 15 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 18 October 1982 Administrative Law Judge William A. Gershuny issued the attached decision. The General Counsel and the Charging Party each filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions to the extent consistent with the ration- ale of this Decision and Order, and to adopt the recommended Order. The essential facts are not in dispute. The Re- spondent operates fast food restaurants in the Co- lumbus, Ohio area, providing customers with table and drive-through service and off-street parking. No other establishment operates on the Respond- ent's property. Three of the Respondent's restaurants, which were constructed by nonunion contractors in 1980, were subject to nonemployee handbilling by the Union on 20 July 1981.1 The Union had an area standards dispute with the nonunion contractors used by the Respondent for remodeling and con- struction of its restaurants. No remodeling or con- struction was underway nor were any employees of the targeted nonunion contractors present at any of the restaurants at issue at the time of the Union's 20 July handbilling, although another restaurant was being constructed for the Respondent in the Columbus area by a nonunion contractor. The Union does not claim to represent or seek to orga- nize any employees of the Respondent's restau- rants. During the late morning hours of 20 July, one nonemployee on the union payroll commenced dis- tributing handbills to customers near the door at each of the three restaurants involved here. A rep- resentative of the Respondent's management soon asked the handbiller to leave the Respondent's premises. Thereafter, the handbiller continued dis- tribution on public property at entrance and exit driveways between the Respondent's parking lot I All dates refer to 1981 unless otherwise indicated and commercial streets. The handbilling continued until "normal" quitting time for union carpenters, which was approximately 4 p.m. The handbilling lasted 1 day. Apart from the local Union's handbill- ing, the record reflects that the Building Trades Council sponsored informational activities includ- ing use of radio billboards, newspaper ads, and cen- tralized handbilling in downtown Columbus. The judge dismissed the complaint by finding that the Union was engaged in unprotected second- ary boycott activity. Alternatively, he found that handbilling on private property was not essential at any of the three restaurants because adequate public areas and other means of communication with actual or potential customers were available. We find it unnecessary to rely on either of the judge's alternative bases for dismissal. Subsequent to the judge's decision, the Board issued Fairmont Hotel, 282 NLRB 139 (1986), outlining its view of the proper application of rulings by the Supreme Court regarding conflicts between property rights and employee rights under the Act. In accord with the Fairmont analysis below, we shall dismiss the complaint. Fairmont noted that the mandate in NLRB v. Babcock & Wilcox Co.2 "to accommodate" each right with "as little destruction of one as is consist- ent with the maintenance of the other" implicitly recognized that a claim to one or the other of the rights in question will have varying degrees of strength depending on the facts of the particular case.3 Consequently, the precise point of accom- modation of competing rights may differ depending on the given context.4 The Board's task under the Fairmont analysis is to weigh the relative strength of each party's claim. 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. [Footnote omitted.]5 2 351 U S 105 (1956) 2 282 NLRB 139, 141 (1986) 4 Id at 142 5 Id at 142 Unlike his colleagues, Member Johansen considers the sig- nificant factor of alternative means of communication as he evaluates the nature and strength of the Union's Sec 7 interest Fairmont, supra As the judge found in this case, adequate alternative means of communication were readily available to the Union Thus, Member Johansen does not find that this factor in any way enhances the Sec 7 interest asserted Ac- cordingly, he joins his colleagues' resolution of the competing claims 285 NLRB No. 105 SISTERS CHICKEN & BISCUITS We find that the property rights asserted by the Respondent are more compelling than the Section 7 rights asserted by the Union. Evaluating the property claim, we note that each of the Respond- ent's three restaurants consists of a single facility surrounded by its own parking lot provided for the convenience of customers. In Fairmont, the Board stated that the property claim of such a single store owner will be "significantly more compelling" than the claim of "the owner of a large shopping mall who allows the general public to utilize his proper- ty without substantial limitation . . . ."s Unlike Fairmont, there is no contention that the use to which the Respondent's property is put-fast food restaurant service-gives rise to any particular pri- vacy concerns. There is also no evidence that the Respondent places any limitations on general public access to its restaurant entrances for custom- er purposes. On the other hand, there is no evi- dence that the Respondent has ever permitted handbilling, picketing, or any other nonconsumer, nonemployee activity on its private premises. Under the circumstances, we find that the Re- spondent was asserting a substantial private proper- ty interest in limiting the use to which its property was put when it prevented nonemployees from handbilling at the entrances to its restaurants. The Section 7 right asserted by the Union here is essentially the same as the Section 7 right asserted in Fairmont: an area standards handbilling protest "significantly removed not only from employees represented by the Union but also from the target- ed employer's employees."7 The Union here did not carry out its activity at any site where employ- ees of the targeted nonunion construction contrac- tors were working, but rather at the already com- pleted restaurants of the Respondent which no longer had any apparent connection with the con- tractors' operations. The Union had no primary dispute with the employer at the site of its protest, and success by the Union in improving the wages of nonunion construction employees would not have even an incidental beneficial effect for the Re- spondent's employees. Under these circumstances, the Union's Section 7 right represented by its area standards handbilling was of limited significance and not at the "core of the purpose for which the NLRA was enacted."8 Balancing the competing interests in light of the above, we conclude that the Respondent's compel- ling property right claim clearly outweighs the Union's claimed Section 7 right. Consequently, we e 282 NLRB 139, 141-142 (1986) Id at 144 Sears, Roebuck & Co v. San Diego County Council of Carpenters, 436 U.S. 180, 206 fn 42 (1978) 797 find that the Respondent did not violate Section 8(a)(1) of the Act by denying access to its private property restaurant entrances to nonemployee union handbillers engaged in area standards pro- tests against nonunion construction contractors. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. Bruce H. Meizlish, Esq., for the General Counsel. Robert F Weaver Jr., Esq. (Vorys, Sater, Seymour & Peace), of Columbus, Ohio, for the Respondent. Benjamin Segel, Esq. (Topper, Alloway, Goodman, De Leone & Duffey), of Columbus, Ohio, for the Charging Party. DECISION STATEMENT OF THE CASE WILLIAM A. GERSHUNY, Administrative Law Judge. A hearing was held in Columbus, Ohio, on June 30, 1982, on complaint issued September 4, 1981, alleging a violation of Section 8(a)(l) of the Act based on Respond- ent's refusal to permit nonemployee union "pickets" to handbill "customers and employees" on Respondent's premises on July 20, 1981 As developed at the hearing, the principal issue is whether the Union's handbilling activity on the premises of three fast food restaurants owned by Respondent, with whom it had no dispute except about Respondent's use of nonunion contractors for the construction of its restaurants and whose employees it did not seek to orga- nize, constituted protected activity under the Act or rather amounted to unlawful secondary activity. By agreement of the parties, all counsel and the administra- tive law judge jointly visited the three sites on the after- noon of June 30, 1982. For reasons set forth below, I conclude that the Union's handbilling on July 20, 1981, was unprotected and unlawful under the Act and that Respondent's refus- al to permit such activity on its premises was not viola- tive of the Act. Accordingly, the complaint is dismissed. On the entire record, including my observation of wit- ness demeanor, I make the following FINDINGS OF FACT 1. JURISDICTION The complaint alleges, the answer admits, and I find that Respondent , engaged in the operation of restaurants with annual interstate shipments of goods in excess of $50,000, is an employer within the meaning of Section 2(2) of the Act. H. LABOR ORGANIZATION The complaint alleges, the answer as amended at the hearing admits, and I find that Local 200 is a labor orga- nization generally within the meaning of Section 2(5) of 798 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Act, but that it does not represent or seek to repre- sent employees of Respondent, its parent, or subsidiaries. III. THE UNFAIR LABOR PRACTICES The facts, to a large extent, have been stipulated or otherwise are uncontroverted. A. Background Respondent operates a number of fast food restaurants in the Columbus, Ohio area, offering table and drive- through service and offstreet parking, all on its own property that it shares with no other establishment. Three of its restaurants, all constructed and opened in 1980, were the scene of nonemployees handbilling con- ducted by Local 200 on July 20, 1981. At the time, an- other restaurant was being constructed for Respondent in the Columbus suburb of Westerville by a nonunion con- tractor. The other three also had been constructed by nonunion contractors. At each of the three locations, one nonemployee hired by the Union began to distribute handbills to customers at or near the restaurant door, was told several minutes later by a managerial employee to leave the premises or otherwise the police would be called, and thereafter con- tinued the distribution of handbills without further inter- ference on public property at entrance and exit drive- ways. Two kinds of printed handbills, drafted by union attor- neys, were distributed: both were identical except that each version identified a different contractor: DON'T PATRONIZE PROTECT YOUR LIVING STANDARDS- HELP US SAVE THE JOBS OF UNION TRADESMEN DON'T PATRONIZE SISTER'S CHICKEN so long as Sister's Chicken is using NON-UNION contractors such as TRIO CONSTRUCTION, on its remoldeling and construction. TRIO CON- STRUCTION is not paying wages and providing working standards established by Carpenters Local Union No. 200. DON'T PATRONIZE SISTER'S CHICKEN. United Brotherhood of Carpenters and Joiners of America, Local Union No. 200 No specific instructions were given to the union mem- bers selected to distribute the handbills, other than to be polite and refrain from answering too many questions. They were left to decide for themselves whether to stand on or off the premises, near the door or in the parking area, or at an entrance or exit point. They were left to determine for themselves the hours of distribution, although the record evidence is clear that only the lunch period was to be covered. The activity began late in the morning and none was contemplated after the "normal" 4 p.m. quitting time for union carpenters. There is no evidence or suggestion that the activity was to extend for more than the 1 day. Livingston Street Restaurant. This location was hand- billed by Brown who positioned himself originally, about 10:30 a.m., 3 feet from one of the two front doors. Sever- al minutes later, he was ordered from the property. He testified he called in to the union hall and therafter went to the driveway on Livingston Street to continue the ac- tivity. The driveway is approximately 30 feet wide and is the sole entrance and exit point for customers, with automo- biles entering on the right side, proceeding around the restaurant which is situated like an island on the proper- ty and exiting again at the Livingston Street driveway. The public sidewalk (which runs across the driveway) is 5 feet wide, a 5-foot grassy area lies between the side- walk and the curb, and another 10-foot grassy area exists on the restaurant side of the sidewalk, thus giving a 20- foot-wide area between the curb and the property line. Immediately inside the driveway cars proceed through a 13-foot-wide lane, past the designated parking places, and proceed again through another 13-foot-wide lane back to the driveway. Livingston Street is a four-lane, two-way, heavily traveled commercial street, with a speed limit of 35 miles per hour. There is no curb park- ing and all businesses have offstreet parking areas, into and from which vehicles constantly pass. As observed, cars that exit the property pull to the curb and stop until traffic permits either a right or a left turn onto Living- ston Street. Brown testified that the only way he could reach the driver's side of incoming and outgoing vehicles was to stand in the middle of the driveway; that he waited until they were well onto the driveway until attempting to hand out the leaflet; that approximately 60-70 cars passed through the driveway during the 3 hours he was there; that 4 cars turned around and left after receiving handbills; that he left after the lunch hour about 1:30 or 2 p.m.; and that it was a rainy day. Despite Brown's testimony that he called the union hall when he was ordered from the front door to the sidewalk, neither Union Business Manager Puckett nor his two organizers, Baker and Casto, recall such a con- versation. Their testimony in this regard was particularly vague and contradictory at best. Baker testified that he took no such call and that, when he and Casto visited the Livingston Street location about noon, Brown said nothing about an eviction from the property. On my ex- amination, Baker changed his testimony, stating that Brown had indeed informed both he and Casto in person that the Company had ordered him from the property. Baker could not recall if he reported this to Business Manager Puckett or whether Puckett decided to termi- nate the handbilling for that reason. Of course, there is no occasion to make credibility findings in this regard because the fact of eviction had been stipulated. Howev- er, the contradictory, conflicting, and vague testimony of the union officials is of importance in determining other factual issues relating to intent and purpose behind the activity. SISTERS CHICKEN & BISCUITS 799 Mound Street Restaurant. This location was handbilled by Smith, who also positioned himself originally several feet from one of the two front doors. After passing out three leaflets, he was ordered from the property . He tes- tified that he called the union hall and was told to go to the sidewalk; that although he had only a 5-foot sidewalk to work on and spent his time dodging cars, he had some success on the sidewalk , but in his view , would have had more success at the front door; that he moved to a rear exit where he had a little success; that most cars had their windows opened; that the majority of customers ac- cepted handbills ; that he succeeded in passing out about 80; that about 12 customers left without patronizing the restaurant; and that he left about 1:30 or 2 p.m. after the lunch rush because he was wet and discouraged The Mound Street location differs from the Livingston Street location in a number of major respects : first, there are two entrance-exit driveways, one on Mound Street and another on a rear alley, and yet another exit also to the rear, second, the distance between the curb and property line is about 7-1/2 feet, which includes a 5-foot sidewalk that runs across the driveway ; third, although Mound Street is a two-way, four-lane street, there is an additional turn lane immediately in front of the restau- rant for use by motorist making a right turn at an inter- section on the far side of the property ; and fourth, there is a bus stop at the Mound Street driveway that would cause the driveway to be completely blocked when a bus stopped to load or unload passengers . Again, the speed limit is 35 miles per hour and vehicles constantly are en- tering and exiting on to Mound'2Street from other simi- larly situated businesses. Finally, there is a traffic light at the intersection that cause traffic to slow down from the normal speed limit as vehicles pass the restaurant. Union organizers Baker and Casto did not visit this lo- cation on the day of the handbilling. South High Street Restaurant. This location was hand- billed by one nonemployee and, as stipulated , he was or- dered from the property by Respondent . No other evi- dence was offered concerning the activity at this site. The restaurant fronts on South High Street, a two- way, four-lane commercial street, with a 35 -mile-per- hour speed limit and one additional lane (on the restau- rant side of the street) for a right turn at the intersection about 100 yards beyond . Traffic is controlled by lights at that intersection and two blocks on the other side of the restaurant . A public alley passes to the rear and side of the restaurant parking area, with all restaurant traffic ex- iting to the rear alley or on to the side alley that leads back to South High Street. A stop sign requires all vehi- cles to stop in the alley before entering onto South High. At that point the southwalk is 9 feet wide and a 9-foot grassy area lies between the sidewalk and the curb, thus giving an 18-foot area between the curb and property line. Union Objective. The Union decided to engage in hand- billing, according to the testimony of Local Business Manager Puckett on direct examination , to let the public know that Respondent used nonunion contractors who did not pay prevailing wages. On cross-examination, he admitted that his answer was not accurate because, in a sense, the activity was designed to put pressure on Re- spondent to, in turn , put pressure on its two contractors. The purpose, he testified , was to try to organize those contractors. He professed ignorance of any union effort, before or after the handbilling activity, to organize the contractor's employees, despite the fact that all organiz- ing is done by business representatives under his direct supervision. Other Union Informational Activities . Apart from the distribution of handbills at the front door and sidewalks at three locations for an hour period on July 20, 1981, the Local considered other means, rejecting some and employing others. Television and radio advertising, according to the tes- timony of Business Manager Puckett , were ruled out as too expensive . Yet Executive Secretary Farrington of the Building Trades Council testified as to the use of 10- second spot commercials on 5 local radio stations at a cost to each trade of $250. The extensive use of billboards has also been made by the Council, according to Farrington, with the develop- ment of a layout that urges supporters to labor not to partonize identified employers. The layout permits the inclusion of four separate employers on the same bill- board. This campaign was conducted at six locations in Columbus and in its environs for a 6-month period be- tween August 1981 and February 1982. The total cost of $11,575 was to have been shared by 10 local unions, but Local 200 apparently did not contribute. A newspaper display ad , of quarter-page size, was run in the Sunday Columbus Dispatch (circulation 200,000) for $1582, with all trades contributing to the cost. And, additional handbilling was engaged in 1 week after the restaurant activity on each of the four corners of Statehouse Square in downtown Columbus, in con- junction with the Building Trades Council . None of Re- spondent's restaurants are located within walking dis- tance of this location. Approximately 7000 handbills in all were printed and distributed at the restaurants and at Statehouse Square . The record indicates that the first printing of 2000 was at a cost of $96 . Handbillers were paid $5 per hour plus $2 in finge benefits. The labor cost to the Local for the four members used on July 20, 1981, thus approximated $168. B. Discussion The General Counsel's case is bottomed solely on the "publicity" proviso of Section 8(b)(4) of the Act, which in relevant part provides: nothing . . . shall be construed to prohibit publici- ty, other than picketing, for the purpose of truthful- ly advising the public, including consumers . . . that a product or products are produced by an em- ployer with whom the labor organization has a pri- mary dispute and are distributed by another em- ployer . . . . Without benefit of this proviso, the General Counsel's case admittedly collapses, for Union Business Manager Puckett freely admits that the handbilling was engaged in to organize the contractors by putting pressure on one 800 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of their substantial customers, Respondent, in violation of Section 8(b)(4). The "product" concept of the publicity proviso has long been applied in the context of buildings constructed for use in the sale of products. Plumbers Local 142 (Pggly Wiggly), 133 NLRB 307 (1961). Nevertheless, the record evidence does not establish the two essential ele- ments of the proviso-one, the existence of a primary labor dispute between the contractors and the Union; the other, the truthful assertion of those facts. As to the former, there is no evidence, credible or oth- erwise, of any effort at any time to organize the employ- ees of the contractors. Puckett, despite his responsibility with the Union for all organizing efforts, had no knowl- edge of any attempt to organize Trio or Caprice. And no other witness even suggested that such activities were ongoing or contemplated. Nor is there any legal or factu- al basis, as suggested by the Charging Party on page 4 of its brief, for my taking judicial notice of the fact that nonunion contractors working on private construction projects typically pay wages and benefits below those es- tablished by local trades. The burden of demonstrating a labor dispute rests with the General Counsel and not even she has suggested that this burden can be established by resort to judicial notice. Furthermore, in the present economy, the under- lying assumption that nonunion wages and benefits always fall short of those prevailing under union con- tracts is subject to serious doubt, particularly when actual wages and benefits are compared on an annual basis. In the construction industry in particular, one would need to know not only wage and benefit levels, but also the hours of available work. A trade union that has secured contract rates in excess of current nonunion rates has no more claim to beating the competition than the merchant who advertises eggs at a fraction of the price of his competitors but has none to sell. As to the latter element, the truthfulness of the hand- bill assertions, there is no evidence, as discussed above, of the fact of a primary labor dispute and no evidence of lower wage and benefit levels. In addition, there is no evidence, no suggestion, and no contention that the Union did anything to determine hourly wage and bene- fit levels, let alone earning levels of the contractors' em- ployees. Here, the only evidence is that the contractors were not signatories to a union contract. For these reasons alone, the record evidence fails to establish that the otherwise unprotected secondary activ- ity was protected by the terms of the publicity proviso of Section 8(b)(4). For yet another reason, the complaint must be dis- missed-the Union had available to it and did in fact uti- lize effective alternative means of communicating infor- mation concerning its alleged labor dispute to customers and potential customers of Respondent's restaurants. It is now well established that, in private property handbilling cases, the tribunal must "balance the conflict- ing rights while exploring the potential alternative means of communication with the intended audience" and that when "nonemployees are engaged in trespassory activity, they must meet the heavy burden of showing that other reasonable means of communication are not available." Giant Food Markets v. NLRB, 633 F.2d 18 (6th Cir. 1980). Under the circumstances present here, private proper- ty handbilling was not essential to effectively reach actual customers at any of the three locations for the reason that adequate public areas were available for those activities. At the Livingston Street restaurant, handbillers had a 20-foot area between the curb and the property line from which to distribute handbills to any driver entering the restaurant. This was more than suffi- cient to permit vehicles to stop or slow down to receive handbills, after having left the roadway. There is no evi- dence of heavy traffic flow into the restaurant; the hand- billers estimated only 60-70 cars during a 3-hour period. At the Mound Street location, there is an 18-foot public area between the Mound Street curb and private proper- ty, an area ample for drivers to safely stop to receive a handbill. Moreover, there is another entrance from a public alley to the rear as well as two rear exits, thereby eliminating completely the supposed danger of handbill- ing at a busy street entrance. There is no evidence as to which entrance is the more frequently used, but one thing is clear : handbilling at the rear exit/entrances reaches both customers and potential customers, enter- ing, leaving, or simply using the public alley. And, at the South High Street location, like the Mound Street restau- rant, more than adequate public property existed at both front and rear entrances, not to mention a side exit onto a public alley. And, finally, there is no evidence to indi- cate that Respondent disparately treated trespassing non- customers. Wholly apart from on-location handbilling, the Charg- ing Party and other construction and building trades unions (all of whom necessarily had the same "labor dis- pute" with the two contractors) had available to them and did in fact resort to other means of communication with actual and potential customers. They pooled re- sources and advertised in the Sunday issue of a large cir- culation newspaper and on five local radio stations, they mounted a successful billboard campaign in the Colum- bus area directed toward not only Respondent, but also employers; and they staged a mass handbilling effort for I week on all corners of Statehouse square, possibly the heaviest traveled pedestrian area in the city. Such activi- ties not only demonstrate the availability of other com- munication methods not involving private property, but also establish union recognition that its audience consists primarily of potential customers. Finally, much has been made by the General Counsel of the fact that Respondent did not file an unfair labor practice charge, contending that Respondent thereby ad- mitted the legality of the activity. No such inference can be drawn under the facts and, in any event, nonaction by Respondent will not satisfy the General Counsel's burden of proof. As to the facts, the private property aspects of the case were momentary at best, lasting only for a few minutes and followed by not more than a few hours of public property handbilling on a single day. SISTERS CHICKEN & BISCUITS On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' ORDER It is recommended that the complaint be dismissed. 801 I If no exceptions are filed as provided by Sec. 102 46 of the Board's Rules and Regulations, the findings , conclusions, and recommended Order shall , as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses.