Homart Development Co.

714 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Homart Development Co. and United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 469, AFL-CIO. Case 28-CA-6372-4 15 October 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 13 August 1982 Administrative Law Judge Burton Litvack issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed cross-exceptions and a brief in support thereof and in opposition to the exceptions of the General Counsel. 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 as modified and to adopt the recom- mended Order. The General Counsel contends that the Respond- ent, manager and operator of Fiesta Mall, violated Section 8(a)(1) of the Act by prohibiting union rep- resentatives from distributing handbills at the out- side entrance to mall tenant, Diamond's Depart- ment Store, urging a consumer boycott of Dia- mond's in furtherance of the Union's protest of the substandard wages being paid by three subcontrac- tors working for a general contractor under con- tract with Diamond's to build a new Diamond's store at another location. The judge found that the locus of accommodation between the property rights of the Respondent and the Section 7 rights being exercised by the Union falls in favor of the former and that by prohibiting the Union's hand- billing on its private property the Respondent did not violate the Act. We agree with the judge for the reasons set forth below. The pertinent facts follow. Fiesta Mall consists of a mall building housing 4 large department stores, including Diamond's, and 135 smaller tenant stores and a two-level parking area. The parking area completely surrounds the mall building and is used by customers of all mall tenants. Encircling the parking area is a private roadway accessible through five entrances from public streets border- ing the property: two from Alma School Road, two from Longmore Road, and one from Southern Avenue. Each day approximately 15,000 cars pass through these entrances to the parking area: 53 per- cent fi om Alma School Road, 27 percent from Longmore Road, and 20 percent from Southern Avenue. Diamond's store has five entrances: three outside from walkways leading to the parking area and two inside from the mall area. The Respondent is responsible for the parking areas that are striped, lighted, protected, and main- tained at the Respondent's expense. It also employs uniformed security guards who regularly patrol and protect the mall; spends considerable sums to maintain the exterior areas of the shopping center; and employs a janitorial staff to clean and maintain the interior mall common areas. The mall, open to the public 7 days a week, is maintained as the Re- spondent's private property. The interior areas are locked at certain times and on certain days, during which the public is denied access. Dress, pet, and parking regulations are promulgated and enforced by the Respondent, and regulatory signs are posted throughout the mall areas. The mall manager, June Hollen, testified that the Respondent's primary function "is to promote and provide a conducive shopping environment. We do everything in our power to make sure it is a very pleasant shopping atmosphere." To this end, the Respondent adheres without exception to a policy prohibiting any indi- vidual or organization to come onto mall property (interior or exterior) to either solicit or distribute literature. Applying this rule to its retail tenants, the Respondent permits only promotions that di- rectly benefit the mall stores. According to Hollen, "[O]ur objective for this would be to generate sales. So these are sales producing events." As to outside groups or individuals, the Respondent's prohibition is enforced without exception-not- withstanding the type of activity or stated purpose. In this regard, a sign posted near the exterior en- trance to Diamond's where the Union attempted to handbill reads: NOTICE TO THE PUBLIC The property comprising FIESTA MALL is Private Property SOLICITATION or DISTRIBUTION of handbills is absolutely PROHIBITED on this property WRITTEN PERMISSION MUST BE OBTAINED FROM THE MANAGEMENT OFFICE TO USE THIS PROPERTY FOR ANY ACTIVITIES OTHER THAN SOLICITATION FIESTA MALL Diamond's has a contract with J. R. Porter Con- struction Co., Inc., a general contractor, to con- 286 NLRB No. 72 HOMART DEVELOPMENT CO 715 struct a retail department store at the Westridge Shopping Mall in Phoenix, Arizona. Pursuant to this contract, Porter entered into subcontracts with Sunburst Plumbing, Atlas Air Conditioning, and Delta Enterprises, Inc., all nonunion subcontrac- tors.' After Plumbers Local 467, Electricians Local 640, and Sheetmetal Workers Local 350 es- tablished that Sunburst, Atlas, and Delta paid their respective journeymen wage rates significantly below those required by statewide collective-bar- gaining agreements negotiated by them, the unions contacted Diamond's and Porter to protest this fact. Diamond's representative indicated that he was responsible only to Porter and had nothing to do with the qualifications of, or wage rates re- ceived by, the plumbers employed by Sunburst. Porter's response is not indicated. Upset with Diamond's apparent unwillingness to act, the unions decided to engage in a campaign asking the public not to patronize Diamond's be- cause Diamond's subcontracted its new construc- tion to subcontractors who paid substandard wages. Considering radio and TV announcements and newspaper and billboard advertisements too expensive, the unions decided to engage in a hand- billing campaign at six Phoenix area malls contain- ing Diamond's stores to publicize to customers of Diamond's their labor dispute and to pressure Dia- mond's to resolve it. The handbilling campaign was orchestrated by Henry Olea, a business representative for the Union. Olea instructed business agents from all three unions that, inter alia, the handbillers were to dress appropriately and to station themselves as close as possible to the outside entrances to the Diamond's stores to limit the distribution to Dia- mond's customers and not interfere with customer ingress or egress. The handbilling at Diamond's stores began 26 March 1981. That morning at the Fiesta Mall a nonemployee union representative stood on the sidewalk 5 to 10 feet from one of Diamond's out- side entrances and distributed handbills to people publicizing the fact that Diamond's was building a store using construction companies that paid sub- standard wages and asking "the public" not to pa- tronize Diamond's. After 15 minutes this nonem- ployee was joined by two nonemployee "appren- tices" scheduled to handbill at Diamond's remain- ing outside entrances. As the apprentices read the handbill, a security guard came over to the group and "said that we could not be handing out hand- bills on there because we were on private proper- ' There is no record evidence that Diamond's retained in this contract the right to control the subcontracting of any of the construction work or the labor costs of any of the subcontractors ty." When asked where they were supposed to go, the security guard gestured toward an entrance and "said off to the road." At this point the subject handbilling activity ceased. In order to continue handbilling at Fiesta Mall, Donald Lathan, in charge of the Union's activity, immediately stationed nonemployees on the side- walks and median strips at the parking lot en- trances from Southern Avenue and Alma School Road. According to Lathan, the handbilling at Southern Avenue was stopped after about 30 min- utes because the traffic speed, about 5 miles above the 45-mile-per-hour posting, made the location dangerous even on the sidewalk. The Union did not initially handbill at Longmore Road because Lathan concluded that the narrow sidewalk, ab- sence of a right-turn lane, and low traffic volume, made this entrance ineffective and possibly danger- ous.2 For a little over a month, the Union continued this handbilling at Fiesta Mall, occasionally at the Longmore Road entrance, but predominantly at the Alma Road entrance where it stationed one handbiller on the sidewalk to catch right-hand turning vehicles and another on the median to catch left-hand turning vehicles. The Union stopped its handbilling altogether at Fiesta Mall a day or two after the police forced Lathan to cease stationing an individual on the center median at Alma School Road and "creating an act of entrap- ment" of the motorists. According to Lathan, handbilling on the center median had been the most effective3 and returning to Diamond's store entrances might have resulted in a trespass lawsuit. Sometime in mid-April, the Union commenced picketing at the Westridge Shopping Mall, where Sunburst, Atlas, and Delta were performing work on the new Diamond's store. There is no evidence that the Union ever considered economic activity at Westridge Shopping Mall before it attempted to handbill the entrance of Diamond's at Fiesta Mall. Nor is there evidence that the Union engaged in any other economic activity against the respective subcontractors, or J. R. Porter, the general con- tractor. In Fairmont Hotel,4 the Board reviewed NLRB v. Babcock & Wilcox Co., 5 and its progeny, and de- 2 In contrast to the Union's statements regarding safety, a courtesy guard at Fiesta Mall testified that he had observed no safety problems resulting from handbilling at any of the vehicle entrances to Fiesta Mall. Also, Mall Manager Hollen testified that she believed it was perfectly safe to handbill at each of the five mall entrances 8 Lathan testified that the right-turn lane was less effective because drivers were reluctant to stop for handbills for fear of a rear-end collision and it was awkward for a solo driver to roll down the passenger side window for literature * 282 NLRB 139 (1986) s 251 U S 105 (1956) 716 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD termined that in such cases involving conflicts be- tween Section 7 rights and property rights, its task is "first to weigh the relative strength of each [par- ties'] claim."6 The Board found: 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. 7 Among the factors to be considered in determining the relative strength or weakness of a property right are: the use to which the property in question is put, any restrictions placed on public access to the property or facility, and the size and location of the facility.8 By way of example, the Board noted that a "single store surrounded by its own parking lot provided exclusively for the conven- ience of customers will have a significantly more compelling property . . . claim" than "the owner of a large shopping mall who allows the general public to utilize his property without substantial limitation."9 Concerning the Section 7 right, among the factors to be considered in assessing its relative strength or weakness are: the nature of the right asserted, the purpose for which it is being as- serted, the employer that is the target of the activi- ty, the situs of the activity, the relationship of the situs to the target, the intended audience of the ac- tivity, and possibly the manner in which the right is being asserted.10 By way of example, the Board noted that "organizational rights and the right to engage in primary economic activity at the situs of a dispute may be viewed as more compelling than handbilling and other informational activity at loca- tions other than the primary situs." 11 Applying the Fairmont analysis to the facts of this case, the panel members disagree in their initial assessment of the relative weight of the property and Section 7 interests involved.' 2 We agree, how- 6 Fairmont, supra, 282 NLRB at 142 ' Id 8 Id 9 Id at 141-142 10 Id 11 Id 12 Chairman Dotson finds that the Respondent 's property claim out- weighs the Union's Sec 7 claim Although the Respondent opens the shopping mall to the general public, it operates the mall under specified rules and regulations applicable to all tenants and strictly enforced by the Respondent Before the subject handbilling the Respondent promulgated and enforced, without exception, a rule prohibiting all individuals and or- ganizations from coming on its property (either inside or outside) to dis- tribute literature for any type of activity or stated purpose A sign posted ever, 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 reason- able alternative means to communicate its message to the public. After being prohibited from handbill- ing at the outside entrance of Diamond's, the Union attempted alternative means off the Re- spondent's property. The Union's assessment that the entrances to the Fiesta Mall off Longmore Road and Southern Avenue were unsafe is disput- ed and is contradicted by the fact that the Union along the sidewalk, not far from the entrance to Diamond's where the subject handbilling occurred, provides "NOTICE to the PUBLIC" that Fiesta Mall is "Private Property" and that "SOLICITATION OR DIS- TRIBUTION of handbills is absolutely Prohibited on this property " The Respondent maintains this rule to promote and provide a conducive shopping environment Thus, although the mall is large, having 139 stores and a parking lot accommodating 15,000 cars daily, the Respond- ent ensures "a very pleasant environment " by protecting potential cus- tomers from solicitation and distribution of literature unrelated to the sale of merchandise by its retail tenants. To this end, the Respondent had a valid interest in enforcing its rule and prohibiting the Union's handbilling at the Diamond's entrance In this circumstance , the Chairman finds the Respondent was asserting a substantial property interest in limiting the use to which its private property was put The Chairman finds the Sec 7 right asserted by the Union is, in contrast, of more limited significance The Union engaged in area-standards handbilling to advise customers of Diamond's that construction of a distant Diamond's store was being per- formed by subcontractors paying substandard wages The Union's dispute is with the subcontractors, Sunburst, Atlas, and Delta, all of whom paid substandard wages The Union's activity, however, was not carried out at the place of business of any of these targeted employers or at the con- struction site where the targeted Employers were performing work for Diamond's general contractor responsible for their selection In fact, the Union's activity was "significantly removed not only from the employees represented by the Union but also from the targeted Employer's employ- ees " Fairmont, supra, 282 NLRB at 143 In short, as in Fairront, "the Union's activity here was carried out at the property of an employer with which the Union had no primary dispute, not even an area-standa_ds one, and the employees of which stood to reap no benefit, not even an incidential one, if the Union achieved its ultimate objective of improved wages for the employees [of the three subcontractors] " Fairmont, supra The Chairman therefore finds that the Union's area-standards handbilling activity at the Respondent's mall was not at the "core of the purpose for which the NLRA was enacted," Sears, Roebuck & Co v. San Diego County Council of Carpenters, 436 US 180 (1978), and that it is out- weighed by the Respondent's property interests Accordingly, he finds it unnecessary to evaluate what reasonable alternative means the nonem- ployee handbillers had to communicate their dispute Member Babson agrees with the Chairman that under Fairmont, if the property claim asserted outweighs the Sec 7 claim, then it is not neces- sary to evaluate alternative means, and the Board should dismiss the com- plaint Member Babson finds, however, that the competing claims of the Respondent and the Union here are relatively equal in strength In his view, the Respondent's property claim is not a strong one The Fiesta Mall is large and open to the general public 7 days a week Although marked as "private property," restriction to use of the mall, its walkways, and parking lot is limited The mall is accessible from three major thor- oughfares, which each day carry 15,000 cars into the mall's unrestricted parking lot This lot services four large department stores, including Dia- mond's, as well as 135 smaller stores. Both the parking lot and the side- walk in front of the mall are open to virtually anyone, and certainly they are open to customers of any of the 139 businesses at the mall Thus, the Respondent has retained only a limited property claim to the areas it manages For the reasons stated by the Chairman, however, Member Babson agrees that the Union's Sec 7 claim here, while protected, is of more limited significance than other Sec 7 rights See Sears, supra Be- cause Member Babson finds that the rights asserted by each party are rel- atively equal, he finds that under Fairmont, reasonable alternative means of communication must be considered in this case HOMART DEVELOPMENT CO. from time to time did handbill at Longmore Road. The Union found handbilling at the Alma School Road entrance to the mall, used by over 50 percent of the mall's customers, to be effective and used this alternative to convey its message to the public for over a month until the police restricted this ac- tivity. After the police ordered handbillers from the median strip on Alma School Road, the Union remained free to continue to convey its message to a substantial portion of the mall's customers from the sidewalk at the Alma School Road entrance. Beyond the Fiesta Mall, the Union actively hand- billed Diamond's stores at five other malls in the Phoenix area, and there is no evidence that the Union experienced unacceptable communication problems at these sites. In addition, the Union pick- eted at the Westridge Shopping Mall where the targeted subcontractors, under contract with Porter, were building Diamond's new store. The Union never picketed the places of business of the targeted subcontractors to inform the public of the substandard wages they paid and the record fails to establish that these sites created unacceptable com- munication problems.' 3 Accordingly, we find that the Respondent's pri- vate property interests were not required to yield to the Union's Section 7 claims, and therefore the Respondent did not violate Section 8(a)(1) of the Act by prohibiting union handbilling at the en- trance to Diamond's store. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. MEMBER STEPHENS, concurring. I concur in the result in this case on the basis of the analysis of nonemployee access rights set out in my concurring opinion in Fairmont Hotel Co., 282 NLRB 139 (1986), which, in turn, reflects my un- derstanding of NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956). That analysis requires consider- ation of alternative means of communication re- gardless of how one assesses the relative weights of particular property rights and Section 7 rights. In Fairmont the union sought to protest an em- ployer's undercutting of area wage standards by entering the property of another who did business with the primary employer and passing out leaflets to the secondary employer's customers. I conclud- ed that the General Counsel had not carried the 13 Chairman Dotson makes this finding concerning the availability of alternative means only because it is necessary to produce a majority opin- ion where he and Member Babson diffei in their assessment of the evi- dence in the initial stage of the Fairmont lest 717 burden of showing that the union needed to enter private property at that location in order to com- municate its area-standards message to customers of establishments doing business with the primary em- ployer. Accordingly, I found no violation of the Act in the property owner's refusal to allow access to the leafletters. I reach the same conclusion here. As the recita- tion of the facts in my colleagues' opinion makes clear, the General Counsel did not show that the Union needed to handbill on the property of the Fiesta Mall in order to have a reasonable opportu- nity of communicating its area-standards message to the public. Under these circumstances, therefore, it appears that Section 7 rights can be accommo- dated without requiring any yielding of the proper- ty rights of the Respondent mall owner. Because we are enjoined by Babcock & Wilcox to reach an accommodation of rights that results in "as little destruction of one as is consistent with the mainte- nance of the other" (351 U.S. at 112), we make the proper accommodation here by dismissing the alle- gation that exclusion of the handbillers from the Fiesta Mall violated the Act. Gregory Z Meyerson, Esq. and Denise M. Blommel, Esq., for the General Counsel. Lawrence M Cohen, Esq. (Fox & Grove), of Chicago, Illi- nois, for the Respondent. DECISION STATEMENT OF THE CASE BURTON LrTVACK, Administrative Law Judge. This matter' was heard on February 23, 1982, in Phoenix, Ar- izona. On July 21, 1981,2 the Acting Regional Director for Region 28 of the National Labor Relations Board, issued a complaint, based on an unfair labor practice charge filed by United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 469, AFL-CIO (Plumbers Local 469), on April 2, 1981, alleg- ing that Homart Development Co. (Respondent), en- gaged in acts and conduct violative of Section 8(a)(1) of the National Labor Relations Act (the Act). Respondent filed an answer, denying the commission of any unfair labor practices. At the hearing, all parties were permitted to examine and cross-examine witnesses, to offer any rel- evant evidence, to argue their positions orally, and to file posthearing briefs. On the entire record in this case, my ' This case was originally consolidated for hearing with six other unfair labor practice charges, all of which involved similar conduct Sub- sequently, the Regional Director for Region 28 approved the Charging Party's request for withdrawal of the other charges and these were sev- ered from the instant proceeding For purposes of establishing the cir- cumstances surrounding the instant allegations , limited references will be made to the conduct that was involved in the withdrawal charges Of course, no findings will be made about those 2 Unless otherwise noted, all dates occurred during 1981 718 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD observation of the demeanor of the witnesses, and the posthearing briefs, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is engaged in the management and oper- ation of Fiesta Mall, a shopping center located in the vi- cinity of Phoenix, Arizona, wherein it rents space to var- ious retail business. Diamond's Department Stores, a Di- vision of Dayton-Hudson Corporation (Diamond's) is en- gaged in the operation of retail department stores at vari- ous locations in the State of Arizona. In the vicinity of Phoenix, Arizona, Diamond's maintains department stores at approximately seven shopping centers, including the Fiesta Mall. 3 During the 12-month period immediate- ly preceding issuance of the consolidated complaint, Dia- mond's derived gross revenues in excess of $500,000 from its business operations described above and pur- chased and received goods and materials valued in excess of $50,000 directly from suppliers located outside the State of Arizona. During the same period of time and in the normal course and conduct of its business operations, Respondent derived gross revenues in excess of $100,000 of which amount in excess of $25,000 was derived from employers or enterprises, including Diamond's and Sear's Roebuck and Company, which, in turn, meet other than a solely indirect standard for asserting jurisdiction. Respondent admits that, at all times material, it has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATIONS Respondent admits that the Plumbers Local 469; Inter- national Brotherhood of Electrical Workers, Local 640, AFL-CIO (Electricians Local 640); and Sheet Metal Workers' International Association, Local 359, AFL- CIO (Sheet Metal Workers' Local 359), are, respectively, labor organizations within the meaning of Section 2(5) of the Act. III. ISSUE The sole legal issue involved here concerns the right of Respondent to prohibit representatives of the above- stated labor organizations from distributing handbills on its private property-at an entrance to the Diamond's de- partment store located in Fiesta Mall-and to require said handbilling to be done on public property at the public entrances to the shopping center. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The record establishes that Diamond's entered into a contract with J. R. Porter Construction Co., Inc., a gen- eral contractor in the building and construction industry, for the construction of a retail department store at the Westridge Shopping Mall in Phoenix, Arizona. Pursuant to this contract,4 J. R. Porter entered into various sub- contracts, including a plumbing subcontract with Sun- burst Plumbing, an air-conditioning subcontract with Atlas Air Conditioning, and an electrical subcontract with Delta Diversified Enterprises, Inc. Neither Sun- burst, Atlas, nor Delta are parties to collective-bargain- ing agreements with any labor organizations. The record further establishes that Plumbers Local 469, Electricians Local 640, and Sheet Metal Workers' Local 359 are par- ties to separate collective-bargaining agreements with various employers in the State of Arizona and that each labor organization took action to ascertain that Sunburst, Atlas, and Delta were compensating their respective journeymen employees for work on the Diamond's project at the Westridge Shopping Mall at wage rates significantly below the area wage standard that had been negotiated by each union for its particular craft. Thus, while Sunburst compensated its journeymen plumbers at a wage rate of $6.50 per hour, journeymen plumbers, pursuant to the collective-bargaining agreements between Plumbers Local 469 and various employers in Arizona, earned $15.50 per hour; while Atlas compensated its journeymen sheet metal workers at a wage rate of $8.50 per hour, journeymen sheet metal workers, pursuant to the collective-bargaining agreements between Sheet Metal Workers' Local 359 and various employers in Ari- zona, earned $15.68 per hour; and while Delta compen- sated its journeymen electricians at a wage rate of $12.50 per hour, journeymen electricians, pursuant to collective- bargaining agreements between Electricians Local 640 and various employers in Arizona, earned $16.35 per hour. The record reveals that subsequent to determining that Sunburst, Atlas, and Delta were paying the wage rates set forth above, representatives of Plumbers Local 469, Electricians Local 640, and Sheet Metal Workers' 359 contacted representatives of Diamond's and J. R. Porter to protest that the wages being paid by the three subcon- tractors at the Westridge Shopping Mall were far below those provided for in three Unions' respective collective- bargaining agreements with employees in the State of Arizona. In this regard, Henry Olea, a business repre- sentative for Plumbers Local 469, testified that in March he telephoned Jack Bailey, the individual in charge of construction for Diamond's, and told him "that the plumbers that were employed by Sunburst were unli- censed, unqualified, and also that they were not paying the prevailing wage rate." Bailey responded, "that he wasn't concerned with Sunburst's past history, and that he was responsible only to J. R. Porter and that he had nothing to do with it." According to Olea, he thereupon attempted to speak to J. R. Porter; however, the latter was outside the State of Arizona and did not return Olea's telephone calls. Also, Donald Lathan, a business representative for Sheet Metal Workers' Local 359, testi- fied that in February he telephoned both Bailey and Joe 8 Other Phoenix area shopping centers at which Diamond 's stores are located include Thomas Mall, Paradise Valley Mall, Park Central Mall, Scottsdale Fashion Square , Metro Center Mall, and Westndge Mall. 4 There exists no record evidence that Diamond' s retained, in this con- tract, the right to control the subcontracting of any of the construction work-including the type of subcontractors utilized (union or nonunion companies) and the labor costs of the subcontracts HOMART DEVELOPMENT CO. 719 Porter, the vice president of J. R. Porter, and informed them that Atlas paid its journeymen employees wages below the Union's area standards. Besides with three nonunion subcontractors, the three labor organizations concluded that they also had a joint labor dispute with Diamond's, the owner of the con- struction project. According to Henry Olea, the latter was involved inasmuch as it was "aiding and abeting" the situation-"[Diamond's] was very much aware of the evidence that we provided to [Bailey], that . . . the sub- contractor . . . was paying substandard wages." While upset at the department store chain's apparent unwilling- ness to act, Olea further testified that no such labor dis- pute existed as to the general contractor, J. R. Porter; for "we never discussed with Porter" the fact that its subcontractors were paying wage rates below the three Unions' area standards.5 Accordingly, presumably in order to both best publicize the labor dispute and pres- sure Diamond's to act and resolve it to the Unions' satis- faction,e the latter determined to engage in conduct ini- tially only as to Diamond's rather than against Sunburst, Atlas, or Delta.7 What was left for decision was a deter- mination of precisely the type of activity-"We wanted to do what was most effective for the least amount of money." Regarding this, Plumbers Local 469 official Olea testi- fied that the three Unions gave much consideration about which activity would best promote their cause. Publicizing it on Phoenix area radio and television sta- tions was considered but rejected. According to Olea, "Well, it would have been too costly. And . . . we were not concerned with informing the [Phoenix area], we were only concerned with notifying the Diamond's cus- tomers." Regarding the costs involved, Olea estimated that, considering the length of the campaign, television advertising would have cost "thousands of dollars" and 10-second radio commercials would cost approximately $250 each. Next, according to Olea, the Unions contem- plated utilizing newspaper and billboard advertisements; both were rejected as "too expensive." Olea testified that, ultimately, it was concluded shat a handbilling cam- paign, which would coincide with the construction of the new Diamond's store, would be the most efficacious method of realizing the Unions' objectives-publicizing the labor dispute and pressuring the recalcitrant Dia- mond's to resolve it. Two considerations seem to have been preeminent in this decision. First, as Olea further testified, the Unions were not interested in disseminating their appeal to Phoenix area residents generally; rather, they wished to limit the scope of their audience to actual customers of Diamond's. The second factor was the cost of the enterprise, with only a limited amount of funds available." The record reveals that the handbilling campaign was scheduled to commence on March 21 and be conducted at six Phoenix area Diamond's department stores, all of which were located in shopping malls-Thomas Mall, Paradise Valley Mall, Park Central Mall, Metro Center Mall, Scottsdale Fashion Square, and Fiesta Mall.9 A few days prior to the start of the activity, Olea, who was the coordinator of the campaign, met with business agents from the three Unions and instructed them on how the handbilling should be conducted. He told the group that the handbillers should be dressed appropriate- ly and that they should station themselves as close as possible to the outside entrances to the Diamond's stores but not so as to interfere with customers' ingress and egress. Olea explained that the location of the handbill- ing was quite important inasmuch as the handbillers were not to affect customers of other stores in the shopping centers-"I wanted only to inform the customers of Dia- mond's."10 Regarding why he instructed the group that the handbillers should stand at the outside entrances to the Diamond's stores and not at the various vehicle en- trances to the malls themselves, Olea testified to five rea- sons: a lack of manpower in order to cover each en- trance, the considerable expense involved in such exten- sive coverage, the possibility of automobile accidents re- sulting from motorists receiving handbills and not con- centrating on their driving, the safety of the handbillers performing their tasks in heavy entrance traffic, and the difficulty in identifying occupants of the incoming auto- mobiles as prospective Diamond's customers. According- ly, with a strategy of doing so as close to the store en- trances as possible, the handbilling campaign was set to commence-on the private property of the respective mall managers. Regarding the Fiesta Mall, which is open to the public 7 days a week, the record discloses that the shopping center, which is clearly marked and maintained as pri- vate property, consists of a mall building, comprising four large department stores-Diamond's, t 1 Gold- water's, The Broadway, and Sears, Roebuck and Compa- ny-and 135 smaller tenant stores, and a two-level park- ing area that completely surrounds the mall building and that is utilized by customers of all mall tenants. There are five entrances from public streets, which border the property, into the mall area: two from Alma School Road, two from Longmore Road, and one from South- ern Avenue. Traffic flows north and south on Alma School Road, with three lanes in each direction and a 5 This testimony was directly controveited not only by the parties' stipulation of facts but by the testimony of Donald Lathan 6 According to Olea, the purpose of the campaign would be "to advise the customers who were going to shop at Diamond's and we were asking them to support the cause-not to patronize Diamond's [because] they subcontracted their new construction to subcontractors who pay their employees substandard wages " Clearly, such a request for help connotes more than merely publicizing the labor dispute. ' Such is clear from the timing of the conduct Thus, the handbilling at issue occurred on March 26, picketing against the three subcontractors at the Westridge Shopping Mall did not commence until mid-April 8 The handbilling campaign continued for approximately 2 months, with a total cost of between $6000 and $7000 8 A seventh Diamond's store was located at the Tri-City Mall The Unions chose not to handbill at the location due to manpower problems and the expense involved Also, no conduct, picketing, or handbilling, was apparently scheduled or planned for the Westridge Shopping Mall- the situs of the construction project 10 The inside mall entrances to the Diamond 's stores were ruled out as potential handbilling sites for fear that such might possibly confuse the public and enmesh other stores in the dispute i i There are five entrances to the Diamond's store-three outside and two inside mall entrances 720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD center median. At each entrance from that street to the mall, there is a traffic light, right- and left-hand turn lanes, and a arrow for left-hand turning vehicles. The speed limit on this road is 40 miles per hour and, during a 24-hour period, traffic volume is estimated at approxi- mately 23,500 vehicles. At each entrance, there is room for two lanes of incoming and outgoing cars. Southern Avenue traffic flows in east and west directions, with three lanes in each direction, a center median, and a 45- mile-per-hour speed limit. The mall entrance is essential- ly similar to those on Alma School Road, with a traffic signal, right- and left-hand turn lanes, and a left-hand turn arrow. The traffic flow, passing this entrance, is ap- proximately 28,000 vehicles during a 24-hour period. Fi- nally, the traffic on Longmore Road flows in north and south directions, with two lanes in each direction. Al- though there are no traffic signals at either mall entrance off this street, there are left-hand turn lanes at each. i 2 The speed limit is 35 miles per hour, with the traffic flow, passing the entrances, at approximately 5800 vehi- cles per 24-hour period. Approximately 15,000 cars per day enter the Fiesta Mall parking areas through these five entrances; of these, 13 percent use the south Long- more Road entrance and 14 percent utilize the north en- trance on that road, 20 percent of the cars enter at the Southern Avenue entrance, and 25 percent of the cars use the north Alma School Road entrance and 28 per- cent use the south entrance. The two Longmore Road entrances are one-tenth of a mile and two-tenths of a mile, respectively, from the Diamond's store; the South- ern Avenue entrance, from which the store is not visible, is approximately four-tenths of a mile from Diamond's; and the two Alma School Road entrances are one-third of a mile and one-fourth of a mile, respectively, from the department store. A roadway encircles the parking area, and the parking area separates the entrances from the mall building. The record further discloses that Respondent" has a substantial and continuing propriety interest in Fiesta Mall. Thus, it is responsible for the parking areas that are striped, lighted, protected, and maintained at Respond- ent's expense; employs uniformed security guards who regularly patrol and protect the mall area; spends consid- erable sums to maintain the exterior areas of the shop- ping center; and employs a janitorial staff to clean and maintain the interior mall common areas. Also, the mall is clearly maintained as Respondent's private property. The interior areas are locked at certain times and on cer- tain days during which the public is denied access. There are dress, pet, and parking regulations promulgated and enforced by Respondent, and regulatory signs are posted throughout the mall areas. Further, regarding the recip- rocal relationship between Respondent and the large and small mall tenants, the lease agreement sets forth the duties and responsibilities of each party, with the tenants agreeing to abide by clearly specified rules and regula- tions, among which are ones pertaining to the manner in which the retail establishment conducts its business. Fi- 12 There is a separate right-hand turn lane only at the north entrance 13 Respondent owns and operates at least 50 shopping malls through- out the United States nally, June Hollen, the mall manager, testified that Re- spondent's primary function "is to promote and provide a conducive shopping environment. We do everything in our power to make sure it is a very pleasant shopping atmosphere." To this end, Respondent's policy, to which it adheres without exception, is to not permit any indi- vidual or organization to come onto mall property (inte- rior or exterior) and either solicit or distribute literature. Applying this rule to its retail tenants, Respondent per- mits only promotions that directly benefit the mall stores-"Our objective for this would be to generate sales. So these are sales producing events." Concerning outside groups or individuals, Respondent's aforemen- tioned prohibition is enforced without exception-not- withstanding the type of activity or stated purpose. There is little dispute as to the factual occurrence that gave rise to the instant unfair labor practice allegations. Donald Lathan, who was in charge of the handbilling at the Fiesta Mall, testified that it was his intention to place an individual at each of the three outside entrances to the Diamond's store. Accordingly, on March 26, 14 he and his daughter Diana arrived at Fiesta Mall in Lathan's car that morning; Lathan dropped his daughter near one of the outside Diamond's entrances and left in order to locate two apprentices i 5 who were to handbill at the two other outside entrances to the store. After her father drove away, Diana moved to a position on the sidewalk 5 to 10 feet from the Diamond's entrance. When the two apprentices approached her, she distributed handbills i 6 14 William S Hart , a business agent for the Asbestos Workers Union, testified that he distributed handbills at an outside entrance to the Dia- mond's store at the Fiesta Mall for 3 hours on the morning of Saturday, March 21, until he had a conversation with an unidentified security guard who was wearing a gray uniform and a badge Hart handed the un identi- fied individual a handbill, the security guard looked at it and went back inside Hart further testified that he passed out "probably 200 or more" handbills during that morning is Neither the two apprentices nor Diana Lathan was a present or former employee of Respondent , Diamond's, Porter, Sunburst , Atlas, or Delta. 16 The handbill reads as follows NOTICE TO THE PUBLIC DID YOU KNOW THAT DIAMONDS has subcontracted or has allowed the subcontracting of its electrical , plumbing and heating and air conditioning at Westndge Mall to contractors who pay their employees wages and offer benefits far below those provided for under contracts between our unions and many employers in the State of Arizona We believe that Diamonds is showing little concern for building tradesmen who have fought for many years to establish a decent wage and benefit standard We also believe that Diamonds is ad- versely affecting all working people in this area by undercutting es- tablished wage and benefit standards PLEASE DON'T PATRONIZE DIAMONDS We ask you to refraim from doing business with this Diamonds Store and all other Diamonds Stores, unless they are willing to charge you sub-standard prices for their merchandise After all, other stores sell essentially the same products for essentially the same prices yet do not build their stores at the expense of the employees who construct the building in which they are located If Diamonds is unwilling to cut their prices, refuse to buy their merchandise and ask them in the future to do business with construction companies that Continued HOMART DEVELOPMENT CO. to people for approximately 15 minutes . 117 After a few minutes, during which time the two apprentices read the handbill, and security guard came over to them , and "he said that we could not be handing out the handbills there because we were on private property ." Diana asked him where they were supposed to go . Gesturing toward an entrance, the guard "said off to the road." At that point, Diana ceased handbilling and waited for her father to return. i 8 A few moments later, Donald Lathan returned , and his daughter related what had just occurred . As a result, and in order to continue the handbilling , Lathan placed his daughter at the Southern Avenue entrance and an ap- prentice at each Alma School Road entrance . With the other entrances covered , he drove over to Longmore Road, intending to handbill at the two entrances from that road. However, on observing , that one entrance had no right-hand turn lane and that the other had little side- walk space on which to stand and distribute handbills, Lathan concluded that doing so on Longmore Road would not be effective and perhaps dangerous . There- fore, he drove back to the Southern Avenue entrance at which his daughter was stationed . Meanwhile, Diana, who had distributed handbills for approximately 30 min- utes at that location, felt unsafe there . According to Donald Lathan, he observed that "the traffic flow there was-the speed limit was greater and after talking to Diana I felt that it was an unsafe area for her to be in, even upon . . . the sidewalk. The traffic was pretty fast." Estimating the traffic speed was, at least, 5 miles per hour above the stated speed limit , Lathan moved his do not ask their employees to take wage cuts in order to fatten the pockets of substandard contractors I B E W Local #640 Plumbers & Pipefitters Local #469 Sheetmetal Local #359 NOTE We are not asking that any employees cease performing work for Diamonds or that any supplier or deliveryman refuse to make a delivery . We are simply seeking the help of the consuming public in preventing the further erosion of wage and benefit stand- ards The handbills had various background colors, including blue and yellow 17 During this time, Diana estimated , she distributed 20 handbills 18 John Weiss, who testified that he is employed by Respondent as a courtesy guard, stated that incidents, involving soliciting or handbilling on mall property, occur frequently and that Respondent's policy is to ask that the individuals cease their activities and, if such does not stop the conduct, to call the local police . He also stated that a major problem with such activities is the resultant litter . Weiss, who wears a uniform consisting of a blue shirt, grey pants, a blue blazer, and a red and white hat, testified that on March 26 he received a call that handbilling was occurring near the Diamond's He walked outside and found a young girl doing the handbilling According to Weiss, he told the girl she was on private property and such distributions were not permitted The girl asked where she could handbill, and Weiss said to do so on the public roads. Henry Olea testified that similar incidents occurred at the other malls when individuals attempted to handbill at i he entrances to the Diamond's stores. The times, during which handbillers were permitted to distribute leaflets at the entrances, lasted from 15 minutes to 4 hours Eventually, the handbillers were forced off mall property at each location 721 daughter to one of the Alma School Road entrances for the remainder of the day.19 The Union's handbilling campaign at the vehicle en- trances to the Fiesta Mall continued according to Donald Lathan , for "a little over a month ."20 Regarding the location of the handbilling , he testified that, based on his daughter's experience on March 26, no such activity was thereafter conducted at the Southern Avenue en- trance. Lathan further testified that while he and perhaps others handbilled at the Longmore Road entrances at different times during the month -long period, such was ineffective in general as "the traffic was very light on that street." Specifically with regard to the two mall en- trances, Lathan did not handbill at that location with no right-hand turn lane as he viewed it as an unsafe location and while handbilling was sporadically done at the other entrance, its effectiveness was questionable to Lathan, with drivers failing to reduce their car speed sufficiently enough to permit handbilling and incoming cars not often going in the direction of the Diamond's store. It was at the two Alma School Road entrances that the Unions accomplished the bulk of the handbilling during this time period. Although there is no evidence about the number of handbills distributed , Lathan stated that the normal practice was to have two handbillers at each en- trance-one stationed on the sidewalk to catch right- hand turning vehicles and one on the street's center median in order to distribute handbills to drivers who were about to turn left into the entrances . This system continued until the local police forced Lathan to cease stationing an individual on the center median allegedly because such "was creating an act of entrapment" of the motorists. Whatever, the Unions' handbilling ceased en- tirely at the Fiesta Mall "a day or two after that" as, ac- cording to Lathan, the center median handbilling had been the most effective method of doing so21 and as re- turning to the Diamond's store entrances might have re- sulted in a trespass lawsuit. As the General Counsel argues that the handbillers should have been permitted to perform the activity on Respondent's private property as close as possible to the Diamond's store entrances, major issues in this proceed- ing concerned the effectiveness of the handbilling at the public, vehicle entrances to the shopping center and the availability of alternative methods of reaching Diamond's customers with the message set forth on the Unions' 19 Diana estimated that in the short time she was stationed on South- ern Avenue, she gave out less than 20 handbills, at the Alma School Road entrance, Diana distributed in excess of 20 handbills-but in a period longer than 30 minutes 20 Henry Olea testified that the entire handbilling campaign continued for a 2-month period at the public entrances to the shopping centers at which the Unions had been prohibited from handbillmg at the entrances to the Diamond's stores He further testified that such was not continuous at each mall, therefore, there were days on which no handbilling oc- curred at one of the malls during this 60-day period 21 Lathan testified that the handbillers discovered that right-hand turn- ing drivers appeared to be fearful of stopping because of the possibility of rear-end collisions Also, from the standpoint of the handbillers, it was difficult to give a handbill to a right -hand turning driver without the presence of a passenger Thus, the drivers would have to go through the awkward maneuver of stopping the car and, at the same time, leaning across the front seat in order to receive the leaflet 722 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD handbill. Regarding the former, I perceive several fac- tors as crucial to the issue of efficacy: the danger both to drivers22 and handbillers, the number of handbills dis- tributed as opposed to the number of handbills given out at the Diamond's entrance, and, of course, the effect, if any, on the recipients. According to Henry Olea, 23 inas- much as the Unions desired only to reach actual Dia- mond's customers and not involve other retail stores and their customers,24 he believed handbilling at the Dia- mond's store entrances was the best method to ensure such. Concerning the effect of the handbills, Olea testi- fied that he personally observed individuals who were given handbills at the Diamond's store entrances read the leaflets and turn away; however, he saw no drivers, on receiving a handbill, turn and drive away. Also, while unaware of what occurred at Fiesta Mall, Olea observed two vehicle safety problems occur at other malls during the handbilling campaign. Donald Lathan, who also be- lieved the most effective method of reaching definite Diamond's customers was to handbill at the entrances to the stores, admitted that he observed no accidents in- volving motorists or handbillers at the vehicle entrances during the campaign; however, he also testified that he often observed congestion at the vehicle entrances and that "people would slow down or stop and someone behind them would blow their horn or such as that. The people were being impatient to go on." He further testi- fied that, given the awkward way by which right-hand turning motorists would have to receive the handbills, unless such motorist had passengers in the front seat, "the people would usually keep going" and not stop and accept a leaflet. Also, according to Lathan, "the majority of the traffic, that I observed, did not go toward the Diamond's store."25 In contrast to Olea and Lathan, courtesy guard Weiss said that he observed no safety problems resulting from the vehicle entrance handbilling at Fiesta Mall, and Hollen, the mall manager, testified that she believed it was perfectly safe to do so at each of the five entrances. Also, Nancy Lindy, the marketing director for Fiesta Mall, testified that she believed the Unions' handbilling at the mall entrances was more effective than at the en- trances to the Diamond's store; for, by covering each of the five entrances, the handbillers would be assured of reaching all potential Diamond's customers. Handbilling 22 Apparently, there was little, if any, foot traffic at the five vehicle entrances 22 Olea testified that he believed the effectiveness of the handbilling could be determined by the following factors- the Diamond's manage- ment agreeing to rectify the area standards dispute, customers agreeing not to patronize Diamond's, and customers, on reading the handbill, going elsewhere to shop During the 2-month handbilling campaign, Olea received numerous calls from individuals who were given leaflets and ex- pressed support Presumably, most of these were handbilled while in their cars 24 As the Unions' handbill clearly and boldly identified Diamond's as the store that was involved in the labor dispute, there appears to have been scant likelihood that other retail stores in the shopping center would have become involved or enmeshed in the dispute In this regard, Olea admitted no such complaints from other store owners 25 This point engendered much controversy at the hearing I stated then, and adhere to the view, that, given the nature of the shopping mall, where a customer parks is not indicative that he will not patronize a par- ticular store-in this case, Diamond's at a Diamond's entrance, she averred, would result in reaching individuals who were just utilizing that en- trance to gain access to the mall and would miss those entering through the interior mall entrances to Dia- mond's. 86 Regarding the efficacy of handbilling as com- pared to utilizing other types of media (radio, television, newspapers, billboards, and the "Pennysaver") for pro- moting the Unions' message, witness Lindy testified that handbilling was the least cost effective method given the numbers of potential people who could be reached by the other advertising media. Lindy explained that hand- billing was a limited advertising device "because it is only reaching the present customers, the customers that are already shopping at Fiesta Mall." Given the $7000 budget of the Unions' campaign, Lindy expressed the opinion that she, at least, would have utilized the "Pen- nysaver," an advertising tabloid that is enclosed in plastic containers and attached to the doorknobs of houses and apartments and within which flyers, the size of the Unions' handbill, are often placed. However, during her testimony, Lindy admitted that she had never conducted a negative advertising campaign such as here involved; that Respondent has always advertised the mall as a entity rather than the single store there; that the mone- tary rates and cost estimates on which her testimony was based were for Respondent's primary trade area; that the cost of utilizing other media for the coverage of the Phoenix area, which the handbilling was designed to ac- complish, would have far exceeded the $7000 budget; that the length and content of the leaflet message may have been unacceptable for other advertising media; and that customers may not have perceived the Unions' ad- vertisement in other, more costly, media. Finally, she conceded that even with handbilling at the vehicle en- trances, "you have to accept that fact that you are going to get other customers at other stores." As stated above, the Unions' Phoenix-area handbilling of Diamond's commenced about March 21, and the in- stant unfair labor practice charge was filed on April 2. It was not until mid-April that the Unions engaged in any economic activity against the primary parties to their labor dispute-Sunburst, Atlas, and Delta-by picketing each at the Westridge Shopping Mall and continuing such for a 4-week period.27 Other than this, the Unions did not picket or handbill the three subcontractors at any other time or any other location; nor did either Union at- tempt to organize the craft employees of the subcontrac- tor employing individuals in its particular craft. Further, Olea admitted that no attempt was made to handbill against the Westridge Shopping Mall at the entrances to the Westridge Shopping Mall or, in any other way, to publicize at that location the Unions' labor dispute. Fi- nally, no economic activity was undertaken against J. R. 26 Of course, witness Hollen admitted that handbilling at the interior entrances to Diamond's would not have been permitted . Also, as Olea pointed out, due to manpower and cost restraints, the Unions could not afford to handbill at each vehicle entrance to the mall or at each Dia- mond's entrance 27 As to the picketing, Olea averred, "I was not effective, they put me on a second gate, the gate was just so obscured from the view of any- body and it was just an unaccepted gate and we were definitely ineffec- tive " HOMART DEVELOPMENT CO. Porter despite its apparent knowledge of, and acquies- cence in, the subcontractors' respective labor relations policies. B. Legal Analysis The genesis of the legal principles involved here in the decision of the Supreme Court in NLRB Y. Babcock & Wilcox Co., 351 U.S. 105 (1956). Confronted with the le- gality of an employer's refusal to permit outside union organizers to leaflet on its private property during an or- ganizing campaign, the Court initially distinguished be- tween restrictions placed on the employer's own employ- ees' right to self-organization and those on nonemployee organizers. Regarding the former, no restrictions are per- missible except to maintain production or discipline. Id. at 113. Concerning outsiders, "their access to company property is governed by a different consideration"-the ability to communicate with the employees. Id. In this regard, the Court concluded that an employer might val- idly refuse nonemployee organizers access to its private property if reasonable efforts through alternative chan- nels of communication will enable their message to be disseminated to the employees. Id. at 112. Then, in the language directly applicable to 1 he instant case, the Court noted that what was involved was the primacy of one of two government granted rights-employee orga- nizational rights, guaranteed by Section 7 of the Act, and the employer's right to preserve its private property- and stated, "Accommodation between the two must be obtained with as little destruction of one as is consistent with the maintenance of the other." Id. It was left to the Board to make such determinations, and, in a later deci- sion, the Court stated that the issues involved were statu- tory, governed by Section 7 of the Act, and not constitu- tional . Central Hardware Co. v. 1VLRB, 407 U.S. 539 (1972). Babcook & Wilcox Co., was decided in the context of union organizing campaigns and an employer's right to prohibit such on its private property. Later, the Court extended the foregoing principles to a determination as to whether it was a violation of Section 8(a)(1) of the Act for the owner of a shopping center to prohibit on its property the exercise of other Section 7 rights by em- ployees of the lessee of a shopping center store. In Hud- gens v. NLRB, 424 U.S. 507 (1976), the respondent owned a shopping center, with one of the leased retail stores a shoe store. The warehouse employees of the lessee engaged in an economic strike and after having commenced picketing at the warehouse facility, located elsewhere, the employees next attempted to picket at the shopping center, in front of the shoe store. Concluding that the Board's function was to strike "a proper accom- modation" between the Section 7 rights and the property rights involved, the Court further concluded that such an accommodation "in any situation may largely depend on the content and the context of the Section 7 rights and private property rights asserted in any given con- text." Id. at 522. On remand, the Board decided that the respondent shopping center owner had engaged in con- duct violative of Section 8(a)(1) of the Act Hudgens, 230 NLRB 414 (1977). Initially, concluding that economic strike activity is likewise protected by Section 7, the 723 Board held that such "deserves at least equal deference" as organizational activity. Id. at 416. Next, the Board noted that the employee status of the pickets entitled them to at least as much protection as would be afforded to nonemployee organizers and that their intended audi- ence was the buying public and the nonstriking store em- ployees. As to the former group, the Board concluded that "the potential customers . . . became established as such only when individual shoppers decided to enter the store." Id. The Board further concluded that, in reaching the potential customers with its message, the mass media, which is utilized by the shopping center owner and its customers to attract customers, "are not `reasonable' means of communication for employees pickets seeking to publicize their labor dispute with a single store in the Mall." Id.28 In this regard, the Board rejected the con- tention that the pickets would have been as effective had they been stationed on the public streets, noting that being placed at least 500 feet from the store would have diluted the message of the picket signs, that safety prob- lems may have resulted, and that neutral shopping center employees may become enmeshed in the dispute. Id. at 417. Finally, the Board determined that, rather than being an innocent or neutral bystander, the shopping center owner was intimately involved in the labor dis- pute by virtue of receiving a percentage of the lessee's gross sales and, thus, protecting his own interests by the conduct of his security guards. Further, by providing a convivial shopping environment and maintaining mall cleanliness, security, and comfort, the owner acts, in effect, as the agent of the lessees. Id. at 417-418. Accord- ingly, the Board determined, the owner "submitted" his own property rights to whatever lawful Section 7 activi- ty might be conducted against the lessee on the latter's own property. Id. at 418. Utilizing the above-stated principles of the Supreme Court and of the Board, counsel for the General Counsel argue that the Section 7 rights of the handbillers pre- dominate and the Respondent unlawfully prohibited the instant handbilling from continuing on its private proper- ty. Utilizing the identical principles but asserting the pre- eminence of Respondent's property rights, counsel for Respondent argues that that latter right must prevail here over the right to handbill. With matters in this pos- ture and faced with accommodating these conflicting rights, I first decide whether the handbillers, in fact, en- gaged in conduct protected by Section 7 of the Act. At the outset, the wording of the leaflets suggests that the handbilling had an area standards objective. Thus, while the bold-faced wording contains a request for a total boycott of Diamond's, the preceding two paragraphs set forth a clearly defined dispute involving the allegedly substandard wages paid by subcontractors of Diamond's. The Board has long held that area standards picketing is conduct protected by Section 7 of the Act. Giant Food Markets, 241 NLRB 727, 728 (1979), revd. and remanded on other grounds 633 F.2d 18 (6th Cir. 1980); Laborers Local 41 (Calumet Contractors), 133 NLRB 512 (1961). 28 Apparently , this rationale is predicated on the limited size of the au- dience-actual customers of the store rather than the general public as a whole 724 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Although not picketing but rather area standards hand- billing is the conduct involved here, I note that the latter was also a form of activity engaged in by the union in Giant Food Markets, and that both the Board and the court found the entire conduct of the union protected by Section 7 of the Act. Likewise, I find the instant area standards handbilling to be within the ambity of Section 7. Although apparently not urging a contrary finding, Respondent does argue that area standards handbilling is of a less compelling nature than other Section 7 rights, including the right to organize and the right to strike, and, accordingly, that less deference should be accorded it in balancing the competing rights and interests here. Contrary to counsel, I am not aware of any decision of the Board or of any court that ranks by degree the vari- ous rights guaranteed by Section 7 of the Act, nor am I aware of any method to do so. I do not deem it proper to attempt such a ranking here and shall treat all Section 7 rights with "equal deference." Hudgens, supra at 416. Further, I note that the basis of counsel' s contention is found in a footnote of the Supreme Court's decision in Sears, Roebuck & Co. v. San Diego County District Coun- cil of Carpenters, 436 U.S. 180, 206 fn. 42 (1978), wherein the Court questioned the protected nature of what it termed "trespassory-area standards picketing."29 Howev- er, analyzing the language of the aforementioned foot- note and of the entire decision, the Board continues to adhere to the conclusion that area standards activity is protected by Section 7-"The plurality opinion . . . in Sears . . . suggested (but did not specificaly find), that area standards picketing may be entitled to less protec- tion than was given [organizational activity] . . . . For the reasons set forth above, we respectfully consider that the Court did not fully examine and [consider the issues involved] .. .." Giant Food Markets, supra at 729 fn. 11. The court of appeals likewise scrutinized the Sears, Roebuck & Co. language and concluded, "It would be stretching the dicta too much to conclude that [the Court's] statements were necessarily meant as pro- nouncements for the future rather than decriptions of the past." Giant Food Markets v. NLRB, supra at 24 fn. 13. Inasmuch as the Supreme Court's language in Sears, Roe- buck & Co. appears to have been dicta and in light of the interpretations of the language by the Board and by the court of appeals, I find30 Respondent's contention to be without merit and shall afford to the instant area stand- ards handbilling the identical deference that was given by the Supreme Court to organizational activity (Bab- 29 In a concurring opinion, Justice Powell stated that "such area standards' trespassory picketing is certainly not at the core of the Act's protective ambit " Sears, Roebuck & Co, supra at 214 In contrast, in an- other concurring opinion, Justice Blackmun analyzed the wording of fn 42 and wrote, " I take the opinion merely to be observing what the Board's past experience has been, not as glossing how the Board must treat the Babcock test in the future, either in regard to organizational picketing or other sorts of protected picketing " Id at 211 Finally, in dis- sent, Justice Brennan argues that "the trespass was arguably protected could scarcely be clearer " Id at 225 90 I am not unaware of the Ninth Circuit Court of Appeals ' uncertain- ty that area standards activity is at the "core" of Sec 7 Seattle-First Na- tional Bank Y. NLRB, 651 F 2d 1272, 1276 (9th Ctr 1980) However, until the Board alters its view and concludes otherwise , I must treat area standards handbilling equally with other conduct priviledged by Sec 7 of the Act cock & Wilcox Co.) and to economic strike picketing (Hudgens). In accommodating the aforementioned Section 7 right to Respondent's equally viable right to enjoy and main- tain its private property, I next examine the context in which the Section 7 rights are being asserted . Counsel for the General Counsel point to Giant Food Markets, supra, as the Board decision closest on point to the in- stant matter. Therein, the owner leased a parcel of land to S. S. Kresge Company, and the latter erected a large building on the site, operated a portion of the building as a K-Mart store, and leased the remainder of the building to the operator of a retail food market, Allied Food Mar- kets, whose employees were represented by a union. Eventually, Allied's lease expired, and S. S. Kresge leased that portion of the building to another retail food market operator, Giant Food Markets, which employed none of Allied's former employees and whose own em- ployees were nonunion. Apparently, Giant Food paid its employees wages below those established by the union that represented Allied's employees, and that union com- menced area standards picketing and handbilling against Giant Food immediately in front of the store. Having de- termined that the conduct was protected by Section 7 of the Act, the Board found irrelevant the fact that the picketing and handbilling was not for the benefit of Giant Food's employees but rather for the benefit of strangers to the employment relationship-"the fact that the employees whom the picketing is primarily meant to benefit are not those of the picketed employer is not as important as is that fact that the employer being picketed is the employer with whom the union has the dispute. It is this employer that the union charges is undermining the livelihood of the represented employees in the area. It logically follows that the location of the employer's business is where the union can reasonably expect its picketing and handbilling to have the most impact." Id. at 728. Next, as in Hudgens, the Board pointed out that the intended audience included not only Giant Food and its employees but also the store's potential customers who became identifiable only on deciding to enter the store. Distinguishing the case from those involving denial of access for organizational purposes, the Board noted that the traditional alternative forms of communication may be applicable in the latter situation but that "where, as here, the intended audience is not readily identifiable until the audience attempts to enter the store, such other means of communication cannot be considered ' reasona- ble' in relation to their possible effectiveness." Id. at 729.3 1 Regarding picketing and handbilling at the en- 3 i The court of appeals amplified this theme, stating that "when the consumers potentially come from a large metropolitan area and cannot be categorized as a specific group patronizing a specific type of store, expen- sive, extensive mass media or mailer campaigns should not be required If reasonableness is a criteria the union should not be forced to incur exorbitant or even heavy expenses " Giant Food Markets v NLRB, supra at 24 The court also pointed out that a mass media campaign would dif- fuse the effectiveness of the communication by physically removing it from the locus of the dispute Id In the context of economic strike activi- ty, the Ninth Circuit Court of Appeals adopted similar rationale as to the "reasonableness" of a mass media campaign Seattle-First National Bank v NLRB, supra at 1276 HOMART DEVELOPMENT CO. trances to the parking area on public property, the Board reiterated its view, expressed in Hudgens, that such is in- effective inasmuch as it would dilute the union's mes- sage-based on the number of stores in the shopping center, the distance from the employer, safety factors, and the possibility of enmeshing other stores and their customers in one store's labor dispute.32 Finally, the Board concluded that the act of demanding that the pickets and/or handbillers leave the shopping center property constituted the 8(a)(1) violation there. Blind adherence to the decision of the Board and court in Giant Food Markets, would mandate a similar result here. Thus, as is argued by counsel for the General Counsel, the handbilling was protected by Section 7 of the Act and the Unions arguably (lid have a labor dis- pute with Diamond's. Further, the audience that the Unions sought to reach were the potential Diamond's customers who would not be clearly identified until they were about to enter the stores. Also, alternative sources of communication would not be reasonable in these cir- cumstances-mass media utilization would have been in- ordinately expensive and, given the extensive metropoli- tan Phoenix area, would have diluted the Unions' mes- sage. Moreover, requiring the handbillers to remain on public roads at the vehicle entrances to the Fiesta Mall placed them at locations significantly distant from the Diamond's store and where they could not be certain of reaching only Diamond's customers.33 Notwithstanding these seeming similarities to Giant Food Markets, in bal- ancing the parties' competing rights, I am mindful of and guided by two overriding considerations: "that the burden imposed on the [unions] is a heavy one . . . evi- denced by the fact that the balance struck by the Board and the courts under the Babcock accommodation princi- ple has rarely been in favor of trespassory . . . activity" (Sears, Roebuck & Co., supra at 205)34 and that the locus point of the accommodation is, at best, an ephemeral one, constantly changing and dependent on the peculiar circumstances of each case. To best accomplish this accommodation and focus on the significant issues, one is compelled to initially exam- ine the labor dispute itself. Although the union in Giant Food Markets, had a primary area standards labor dispute with that employer and while I have no doubt that Plumbers Local 469, Electricians Local 640, and Sheet 32 In the view of the court of appeals , the real issue in the case con- cerned the effectiveness of picketing and handbillmg at the store entrance as opposed to doing so at the public entrances to the shopping center, the case was remanded for the taking of evidence as to the reasonableness of utilizing the later location Giant Food Markets v NLRB supra 33 Although, of course, customers of other stores might very well enter the mall building through a Diamond'; entrance, it is more likely than not that, for the most part, actual Diamond's customers will enter through its doors In contrast, while obviously all potential Diamond's customers enter at the vehicle entrance, such is equally true for all cus- tomers of all the other Fiesta Mall retail stores Thus, the intended audi- ence at the vehicle entrances is not narrowed or easily identified until in- dividuals approach the store entrances In this regard , I note that, as Henry Olea testified, blanket coverage of each entrance, every day, was impossible due to budget and manpower constraints 34 As far as I can determine Giant Food Markets, is the only denial of access NLRB case involving area standards activity Prior cases involve mainly organizational and/or economic strike conduct and subsequent cases concern the latter See Captain Nemo's, 258 NLREI 537 (1981), Seat- tle-First National Bank, 243 NLRB 898 (1979) 725 Metal Workers' Local 359, respectively, had a labor dis- pute here regarding substandard wages, the real issue concerns the relationship of Diamond's and, ultimately, Respondent to the dispute and how remote these rela- tionships appear to be. Thus, the record discloses only that Diamond's contracted with J. R. Porter for the con- struction of a department store at the Westridge Shop- ping Mall; that J. R. Porter, in turn, subcontracts aspects of the construction work to Sunburst, to Atlas, and to Delta; and that three subcontractors paid to their respec- tive craft employees wages beneath the three Unions' re- spective area standards. Lacking is record evidence re- garding Diamond's control over the project, including control over the subcontractors' respective labor costs. Although Henry Olea testified that Diamond's was aware of and was "aiding and abetting" the situation, the only record evidence of such is Jack Bailey's comment "that he wasn't concerned with Sunburst's past history, and that he was responsible only to J. R. Porter and that he had nothing to do with it." Without explanation, the statement is susceptible of the interpretation that Bailey was merely accurately reflecting Diamond's lack of con- tractual control over the subcontractors. If true, then any "labor dispute" with Diamond's is, of course, a sham, mandating the conclusion that, as Diamond's was a highly visible entity, the Unions chose it as the object of their conduct in order to best publicize their actual labor dispute with the aforementioned subcontractors. Howev- er, assuming that the record warrants the conclusion that Diamond's is, indeed, involved in the labor dispute here, it is merely a tertiary party to the area standards labor dispute of the three Unions, Plumbers Local 469, Electri- cians Local 640, and Sheet Metal Workers' Local 359. Thus, there is contention or evidence that, at Fiesta Mall, Diamond's employs any employees who perform the same work as do other workers who are represented by either of the labor organizations. 35 Rather, the record establishes that primary area standards labor disputes exist between Sunburst, Atlas, and Delta and the afore- mentioned craft union that represents employees of com- petitors of each of the subcontractors. Further, second- ary labor disputes exist between the respective Unions and J. R. Porter, which, despite the testimony of Olea, certainly had knowledge of the instant area standards disputes. By dint of the foregoing discussion, I do not intend to question the legality of the Unions' conduct of publiciz- ing this remote or, perhaps, sham labor dispute with Dia- mond's. Rather, the remote nature of the labor dispute is extremely pertinent to the matter of Respondent's right to prohibit the publication on its private property. The relevancy of such an inquiry is clear inasmuch as, in Giant Food Markets, the crucial facts, from which the Board's subsequent" conclusions consistently flowed, 3e The Supreme Court points out that "the rationale for protecting area standards [activity] is that a union has a legitimate interest in pro- tecting the wage standards of its members who are employed by competi- tors of the picketed employer " Sears, Roebuck & Co, supra at 206 fn 42 36 The Board did not find important the fact that the union's area standards activity was not for the benefit of the picketed employer's em- ployees Giant Food Markets, supra at 728 In this regard, the Supreme Continued 726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD were that the picketed employer was the employer with which the involved union had the labor dispute and, ac- cordingly, that the situs of the dispute was at that loca- tion. Thus, the Board's conclusion therefrom is, at once, understandable and logical-that it was at the location of that employer's business that the union's area standards activity could be expected to have the greatest impact, notwithstanding that the lessor's property rights would thereby be subverted. Here, the nexus between the three Unions' respective labor disputes and Diamond's is, at best, attenuated, and as the situs of the dispute was at the location of the construction work (Westridge Shopping Mall), the labor dispute was not, at all proximate to Re- spondent. Hence, not only was this dispute remote to Respondent in terms of parties, it was also remote in terms of location. Next, I consider the matter of alternative methods of communication insofar as such is pertinent to Respond- ent's right to prohibit the Unions' handbilling against Diamind's on its pnvate property, Fiesta Mall. From the foregoing discussion, it is clear that Plumbers Local 469 was engaged in an area standards labor dispute with Sun- burst, that Electricians Local 640 was engaged in such a dispute with Delta, and that Sheet Metal Workers' Local 359 had an area standards dispute with Atlas. It is equal- ly clear that the situs of these actual labor disputes was the Westridge Shopping Mall, at which each subcontrac- tor was working on the construction of a Diamond's store for J. R. Porter. In the words of the Board, "it logically follows that [Westridge Shopping Mall] . . . is where the [unions] can reasonably expect [their] .. . handbilling to have the most impact." Giant Food Mar- kets, supra at 728.37 Yet, as the record makes patently clear, it was not until mid-April, or at least 3 weeks sub- sequent to the handbilling at the six other Phoenix-area shopping malls, that the Unions commenced picketing at the Westridge Shopping Mall. That Olea eventually found such to be ineffective is not relevant to the point that such was undertaken long after the handbilling at other locations. In this regard, there is no evidence that the Unions even considered economic activity at Wes- tridge Shopping Mall prior to commencing the handbill- ing involved here. Moreover, other than the aforemen- tioned picketing, the three Unions engaged in no other economic activity against the respective subcontractors, the Westridge Shopping Mall itself, or J. R. Porter, the general contractor. Thus, the Unions engaged in no pick- eting or handbilling against either of the three subcon- tractors at its place of business or other Phoenix-area jobsites; did not attempt to handbill against the Wes- tridge Shopping Mall at its entrances, which conduct Court pointed out that the group, for whose benefit the area standards activity is conducted, are the employees of competitors of the picketed or handbilled employer Sears, Roebuck & Co, supra Here, there is no con- tention that the area standards handbilling was for the benefit of Dia- mond's competitors, rather, such was for the benefit of competitors of the three subcontractors-employers with which the respective Unions nego- tiated collective-bargaining agreements Accordingly, contrary to Giant Food Markets, I find this factor to be a relevant consideration here 97 Put another way, the fact that Diamond's was the most visible em- ployer does not, without more make it the situs of the labor dispute and its locations , including Fiesta Mall, the most logical places at which to handbill would presumably have been lawful (Florida Building Trades Council (DeBartolo Corp.), 252 NLRB 702 (1980), affd. 662 F.2d 264 (4th Cir. 1981)); and failed to engage in any form of economic or other activity against J. R. Porter, which, the record discloses, was aware of the labor relations practices of its subcontractors, either at the Westndge Shopping Mall or at any other lacation. All of foregoing, I believe, were reasonable, viable alter- native methods by which the three Unions could, if they so desired, have publicized their primary area standards labor disputes with Sunburst, Delta, and Atlas, respec- tively, without having to resort to trespassing on Re- spondent's private property in order to do so indirect- ly.ss I, of course, recognize that the Unions, instead, chose to handbill not against their primary disputants but rather against the more visible Diamond's. Such, however, does not mean that I must blind myself to the realities of the situation and view the matter, as suggested by the court of appeals in Giant Food Markets v. NLRB, supra, as simply involving the efficacy of handbilling at the store entrances as opposed to doing so at the shopping center entrances. Rather, in reaching my conclusion that Re- spondent lawfully prohibited the handbilling on its pri- vate property, I initially note that the Unions' choice of party against whom to protest and promote their area standards labor disputes does not serve to alter or dis- guise39 the remote character of such-in terms of party and proximity-to Respondent. While the Board, in Hudgens, supra, concluded that the shopping center owner there was not an "innocent bystander" to its les- see's labor relations dispute, I believe that the remote nature of any real labor dispute suggests that the position of Respondent is more tenable than that of the property owner in that case. For example, while the outcome of the labor dispute in Hudgens may have affected the fi- nancial relationship between the owner of the leased store and the shopping center owner, such a result is highly doubtful in this case as the primary dispute does not, at all, involve the Diamond's store in Fiesta Mall. Indeed, there is no record evidence about the financial relationship between Diamond's and Respondent, and, in any event, I fail to perceive how such would be affected by a labor dispute involving stranger parties at a distant, competitor shopping mall. As a second factor, I note that, when one considers the realities of the labor dis- pute, there were several reasonable, viable methods by ss Citing Sheet Metal Workers' Local 54 (Sackowitz), 174 NLRB 362 (1969), counsel for the General Counsel correctly points out that the pub- licity proviso to Sec 8(b)(4)(B) of the Act is not geographically limited and that the Unions were free to expand their economic activities beyond Westridge Shopping Mall However , it is quite another matter to suggest that the publicity proviso activity automatically assumes primacy over a secondary employer 's pnvate property rights In this regard , I note that there is nothing in Sackowitz regarding the exact location of the handbill- ing at the store-did it occur on the store's property or on a public side- walk. Moreover, I note that the instant case did not arse in the context of an alleged violation of Sec. 8(bX4)(B) and that Respondent has not contested the legality of the handbilling se Reading the handbill would lead the ordinary reader to the conclu- sion that Diamond 's controlled and was responsible for the subcontract- ing or work at the Westridge Shopping Mall At best, the record is un- clear about these points HOMART DEVELOPMENT CO 727 which the Unions could have promoted their cause to the public and not have intruded on Respondent's pri- vate property.40 Moreover, as several of these alterna- tives (handbilling and picketing at the situs of the labor dispute-Westridge Shopping Mall) would be accom- plished where the primary employers were working, it could be expected that they would achieve the Unions' maximum effect. In these circumstances, utilization of such alternatives would hardly dilute or diffuse the Unions' message. In short, in the circumstances of this case and in view of the record as a whole, I believe the locus of accom- modation between the handbillers' Section 7 rights and Respondent's private property rights falls in favor of the latter. Therefore, I find that Respondent did not violate Section 8(a)(1) of the Act by prohibiting handbilling at the Diamond's store entrances and requiring such to be done at the entrances to Fiesta Mall, and I shall recom- mend that the complaint be dismissed. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Plumbers Local 469 is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent committed no unfair labor practices here. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- 40 As I stated above, if a primary labor dispute existed between the three Unions and Diamond's, there is no question that handbilling at the Fiesta Mall entrances would not be a reasonable alternative However, viewing the situation here as I do and noting that Diamond 's was but a remote, tertiary party to the Unions' real labor disputes, handbdhng at the mall entrances was an effective means of publicizing the actual labor dispute. Thus, I note that no real safety problems resulted from the month-long handbdhng campaign at the Alma School Road entrances and Henry Olea admitted receiving telephone calls from individuals who receive handbills at mall entrances and who voiced support for the Unions' cause In these circumstances , it could not be said with certainty that handbilling at the mall entrances was not effective-at least to some degree ed41 ORDER The complaint is dismissed in its entirety. 41 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.