W S Butterfield, Inc

30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD W S Butterfield, Inc and Stage Employees and Motion Picture Operators Union, Local 274, International Alliance of Theatrical Stage Em ployees and Moving Picture Operators, AFL- CIO Case 7-CA-18394 December 20, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On December 16, 1981, Administrative Law Judge James L Rose issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions, as explained below, and to adopt the recommended Order as modified The judge found that the Respondent violated Section 8(a)(1) of the Act by prohibiting the Union from picketing and handbilling on the private prop erty in front of the Respondent's movie theater We agree with the judge for the reasons set forth below The Respondent operates several movie theaters in Michigan, including the Jackson Plaza Cinema Theatre (Jackson Cinema) in Jackson The Jackson Cinema, a freestanding structure with three audito riums, is located at the rear of a wedge shaped property owned by the Respondent The sides of the Respondents lot are 450 and 520 feet respec- tively, and the front property line is a curve of about 720 feet The property surrounding the thea ter is used as a parking lot for theater patrons The box office, a lobby area, and separate entrance and exit doors are located at the front of the theater, where there is a curbed sidewalk about 16 feet wide and 40 feet long A portion of the sidewalk is covered by a pavilion that is supported by pillars that bisect the sidewalk The Jackson Cinema faces Wisner Street, a four lane street with a speed limit of about 35 miles per hour Three curbed entrances off Wisner Street provide the only access to the theater There are no traffic signals or stop signs at any of the en trances, and each is about three car widths wide Dan Goodman, manager of the Jackson Cinema, testified that about 70 percent of the theater's pa trons use the central entrance that leads directly to the box office Cars enter the Jackson Cinema parking lot at speeds of between 10 and 15 miles per hour A 20-foot wide grassy berm separates Wisner Street from the Jackson Cinema's parking lot There are large bushes on the berm on both sides of the central entrance The bushes are along the curbed area that extends from the street back past the theater's marquee Louis Poppler, the Union's business agent, testified that the bushes are thick, and that they are between "knee- and waist high " It is between 75 and 100 feet from the front of the theater to the curb of Wisner Street Across the street from the theater is a shopping center, a Sears, Roebuck & Co store, and a paint store The Respondent and the Union were parties to a series of collective bargaining agreements The par ties' most recent agreement, effective from October 1, 1978, through October 1, 1980,1 covered about 50 stagehands and projectionists employed by the Respondent at its 6 Michigan theaters 2 Poppler testified that most members of the Union are em- ployed by more than one employer, and that thea- ters only employ about two regular projectionists Prior to the contract's expiration the parties en- tered into negotiations for a new agreement but, as of the date of the hearing, were unable to agree on a successor contract The specific areas of disagree- ment concerned the use of management personnel to operate projectors at the Jackson Cinema and premium pay for extra work at the Jackson Cinema and the Campus Twin Theatre in East Lansing Poppler testified that the Union decided to picket and handbill at the Jackson Cinema-the theater that was the focus of both areas of dis agreement between the parties-to inform the Re- spondent's customers of the Union's position in ne gotiations He added that the Union did not hope or expect to drive away customers, but wanted to create adverse public opinion in an effort to per- suade the Respondent to treat unit employees more fairly Poppler also stated that to a much lesser extent the Union wanted to inform the Respond- ent's nonunit employees of the Union's position Thus, on October 7, a weekday when management operated the projectors, 8 or 10 members of the Union commenced picketing and handbilling near the Jackson Cinema's box office during peak busi ness hours prior to the 7 p in showing 3 Specifical i All subsequent dates are in 1980 unless stated otherwise 2 At the time of the hearing the Respondent operated four theaters in Lansing and East Lansing and one theater in Hillsdale in addition to the Jackson Cinema 3 During the week there are six shows per night at the Jackson Cinema Total attendance per night ranges from approximately 275 to 300 people Poppler testified that on one occasion about 150 customers arrived during a I hour picketing period 292 NLRB No 8 W S BUTTERFIELD THEATRES ly, the pickets walked in an oval on the front half of the theater-front sidewalk between the curb and the pillars supporting the pavilion, and did not walk on the other half of the sidewalk between the pillars and the box office The picket signs read "We want a contract-bargain in good faith", `Butterfield is Unfair to Projectionists, AFL-CIO", "1% No Way", and "Butterfield is not bargaining in good faith-Stagehands and Projectionists AFL- CIO " The pickets also distributed a handbill de scribing in more detail the issues that stand in the way of a contract settlement ' Poppler testified that some of the pickets were from Lansing and East Lansing and that some were from Jackson When asked on cross- examina- tion why some of the pickets came from the Lan- sing area, Poppler stated that the Union's objection concerning the proposed wage increase involved both the Campus Twin Theatre in Lansing and the Jackson Cinema, that employees of the Respond- ent's other theaters in Lansing wanted negotiations to resume so that their contract would not be de layed, and that the Union was able to recruit as pickets only about 10 members, who alternately picketed at the Campus Twin and Jackson Cinema theaters In addition, Poppler testified that two of the pickets-John Hessemer and Vern Prendel-- were Jackson Cinema employees On the other hand, Goodman testified that he did not see Hes semer, Prendel, or any other Jackson Cinema em ployee on the October 7 picket line Shortly after the October 7 picketing com- menced, the Respondent informed the pickets that they were on private property, and threatened to call the police if the pickets did not move to the public street The pickets continued their activity until the early showing had begun, left the theater for about an hour, and then resumed picketing on the sidewalk in front of the box office prior to the start of the second showing Shortly after the pick ets returned, two police officers arrived and, citing a city trespass ordinance, asked the Union to picket near the public street Poppler testified that after this confrontation the pickets left the theater area Goodman, however, testified that the picketing continued at the berm The Union resumed picketing in front of the Jackson Cinema box office about a week later on October 13 at 6 30 p in The Respondent again asked the pickets to leave, and called the police when they refused to do so After talking with the police, the pickets left to contact their attorney, but returned to picket at the same location prior to the second showing Within a short time the police re turned and asked the pickets to move to public property Soon thereafter another police officer ar 31 rived and advised the pickets that the city attorney had determined that picketing near the box office could continue unless the Union's activity disturbed customers or interfered with their access to the theater The pickets remained at the theater until about 9 30 p in The Union picketed at the Jackson Cinema on two subsequent occasions without fur- ther comment from the Respondent or the police The Respondent's auditoriums are used only for showing movies, and the surrounding parking lot is for the exclusive use of theater patrons Goodman testified that the Respondent maintains and en forces a policy prohibiting solicitation and loitering on its premises For example, Goodman stated that the Respondent regularly enforces its no loitering rule against school children who congregate and drink on its property, and that the Respondent en forced its no solicitation rule against two individ- uals who were selling records from a van parked on the theater's lot The Respondent contended that the Union could effectively communicate its message from the berm because the Respondent's parking lot and Wisner Street are well lit and traffic does not back up when customers turn into the Jackson Cinema parking lot because the street has two lanes going in each direction 4 By contrast, Poppler testified that the Union decided against picketing at the berm because there was some backup of traffic on Wisner Street on the days the Union picketed, it would not be safe to try to make contact with people in cars, and pedestrians would be more likely than motorists to ask for handbills When asked at the hearing whether the pickets could have stood on the berm near the central entrance, Poppler responded that they could have stood on the pavement at the theater's central entrance or on those portions of the berm that are not covered by bushes He added that the Union did not consid- er placing handbills on cars parked in the Respond- ent's lot and that the cost of advertising in the local paper was prohibitively expensive The judge found that some of the pickets were employees of the Respondent because it was undis puted that three or four of the pickets were em ployed by the Respondent in Lansing He further found, however, that regardless of whether any of 4 Goodman also testified that the Union s activities disrupted the Re spondent s business and inconvenienced customers In this regard he stated that the ticket line at the Jackson Cinema generally forms in such a way that management is able to look through the lobby windows to see the number of people in line and thereby determine how to operate and prepare the concession stand and whether to delay the start of the movie According to Goodman the presence of the pickets forced customers to form a line in the opposite direction which could not be seen from inside the theater He admitted however that the Union picketed when box office lines were short with a maximum of about eight people at any given time 32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the pickets were employees of the Jackson Cinema or any other of the Respondents theaters, the Union's activity was not "stranger picketing" be- cause it was done on behalf of the Respondent's employees and in furtherance of their bargaining dispute with the Respondent He concluded that, because collective bargaining is at the core of the Act, the Union had a fundamental Section 7 right to picket to advertise its bargaining position Ap plying the balancing test set forth in NLRB v Bab- cock & Wilcox Co, 351 U S 105 (1956), the judge found that the Union's Section 7 right outweighed the Respondent's private property interests Regarding alternative means of communication, the judge noted that the ability to handbill simulta- neously with picketing is important to the effective communication of a message In this case, the judge found that the physical layout of the theater and the parking lot would make picketing at the berm an impractical way of communicating to po- tential customers " Relying on the presence of the bushes on both sides of the central entrance and the fact that cars enter the lot from a four lane street with a 35 mile per-hour speed limit, the judge found that handbilling near the berm would be unsafe The judge also noted that customers could not talk to the pickets at the berm 5 Address- ing the Respondent's contentions with respect to alternative means, the judge further found that ad vertising in a newspaper would be prohibitively ex pensive, and there was no reason to believe that the Respondent would have permitted the Union to handbill in its parking lot 6 Accordingly, he found that the Respondent's property right had to yield to the Union s statutory right to picket and hand- bill and that the Respondent violated Section 8(a)(1) by removing the pickets from the sidewalk in front of the theater Subsequent to the judge's decision, the Board issued Jean Country, 291 NLRB 11 (1988), in which it reevaluated the analytical approach for re- solving conflicts between Section 7 and private property rights set forth in Fairmont Hotel, 282 NLRB 139 (1986), and clarified that the availability of reasonable alternative means is a factor that must be considered in every access case where a legitimate property interest and a Section 7 right must be accommodated 7 The Board further held (at 14) 5 We note that the judge viewed the Jackson Cinema based on an invi tation from the parties during a recess in the hearing 6 The judge also found that there was no evidence that the Union s picketing adversely affected the Respondents business operation or in convemenced potential customers 7 In reaching this conclusion the Board emphasized that under the Su preme Courts decisions in NLRB v Babcock & Wilcox Co above and Hudgens v NLRB 424 U S 507 (1976) the Board is charged with seek mg to avoid the destruction of [Sec 7 and property] rights if at all pos Accordingly, in all access cases our essential concern will be the degree of impairment of the Section 7 right if access should be denied, as it balances against the degree of impairment of the private property right if access should be granted We view the consideration of the availability of reasonably effective alternative means as especially significant in this balancing process In the final analysis however, there is no simple formula that will immediately deter- mine the result in every case The Board in Jean Country found that the fol lowing factors may be relevant to assessing the weight of a property right the use to which the property is put, the restrictions, if any, that are im posed on public access to the property, and the property's relative size and openness The factors that may be relevant to the consideration of a Sec tion 7 right include the nature of the right, the identity of the employer to which the right is di rectly related (e g, the employer with whom a union has a primary dispute), the relationship of the employer or other target to the property to which access is sought, the identity of the audience to which the communications concerning the Sec- tion 7 right are directed, and the manner in which the activity related to that right is carried out Fi nally, factors that may be relevant to the assess ment of alternative means include the desirability of avoiding the enmeshment of neutrals in labor disputes, the safety of attempting communications at alternative public sites, the burden and expense of nontrespassory communication alternatives, and the extent to which exclusive use of the nontrespas- sory alternatives would dilute the effectiveness of the message Applying the Jean Country analysis to this case, we initially find that the Respondent owns the Jackson Cinema and the property on which it is lo- cated, and, therefore, that the Respondent's con- duct with respect to the union pickets was based on a legitimate property interest We also note that the Jackson Cinema is a freestanding facility that is used only for showing movies and that is surround- ed by a parking lot for the exclusive use of theater patrons Further, there is evidence that the Re- spondent maintains and enforces rules against solic itation and loitering on its premises We conclude that the Respondent's property right at issue is a relatively strong property right The Section 7 right asserted here is primary eco- nomic activity which constitutes a core Section 7 right Although it is unclear whether any of the sible and with permitting infringements on one right only to the extent necessary to maintain the other Jean Country at 12-13 W S BUTTERFIELD THEATRES pickets were employed at the Jackson Cinema," the record supports the judge's finding that at least some of the pickets were employees of the Re- spondent In any event, regardless of whether any of the pickets were the Respondent's employees, the Union, as the employees' bargaining agent, was engaged in primary activity involving a core Sec- tion 7 right With respect to other aspects of the Union's pro tected conduct, the picketing and handbilling were a result of a contract dispute between the Union and the Respondent, and the Jackson Cinema was the focus of both areas of disagreement involved in the dispute Therefore, the target of the Union's ac- tivity was at the situs where picketing and hand billing occurred, and that situs was the place where affected employees were employed Finally, as found by the judge, the evidence does not establish that the Respondent's business was disrupted or its customers inconvenienced to any significant degree Thus, because the pickets confined their ac- tivity to the front portion of the sidewalk, the area between the box office and the pillars-8 feet in width-remained clear for customer use We find that consideration of the factors of the situs of the Union's conduct and the peaceful and unobstruc tive manner of that conduct does not diminish the strength of the core Section 7 right asserted Under the circumstances, we find that the Union s Section 7 right is certainly worthy of protection against substantial impairment Regarding the Union s alternative means of com- municating its message to its intended audience, the customers of the Jackson Cinema, we find that picketing and handbilling on the public property at the parking lot entrances to the theater presents the only possibility of an alternative means 9 Further, 8 The judge did not resolve the conflict in testimony as to whether Jackson Cinema employees Hessemer and Prendel picketed We note however that Poppler who testified that they did picket was present during the picketing on both October 7 and 13 while Goodman who tes tified that none of the pickets were Jackson Cinema employees was present only on October 7 9 The Board in Jean Country noted that only in exceptional cases will the use of newspaper radio and television be feasible alternatives to direct contact Jean Country above at 13 We find that the present case is not an exceptional one Thus we agree with the judge that newspaper advertising would be prohibitively expensive for the Union We further find that mass media advertising would not be a reasonable alternative here because it would have moved the Union s message away from both the situs of the dispute and the Union s intended audience the Respond ent s customers See Jean Country above at 18 fn 18 In view of the fact that the Respondent wanted the Union s pickets to move to the public street we also agree with the judge that there was no reason for the Union to believe that the Respondent would have permit ted handbilling in the theaters parking lot We find that handbilling in the parking lot was not a reasonable alternative notwithstanding the Re spondent s belated contention-made at the hearing and in its posthearing brief-that the Union should have considered this option as a means of communicating its message 33 for the reasons discussed below, we agree with the judge s finding that picketing and handbllhng near the theater's central entrance to the parking lot was not a reasonable alternative means of communica- tion because the General Counsel has shown that union activity at that location would be ineffective and/or unsafe As mentioned above, 70 percent of the Respond- ent's customers use the central entrance The judge found, however, that the bushes on both sides of the central entrance and the fact that cars turn into the Respondent's parking lot from a four-lane street with a 35 mile-per-hour speed limit would make picketing and handbllhng at the berm unsafe 10 Contributing to the safety problem presented by this location is the lack of a traffic signal or stop sign at the central entrance 11 Regarding the effec tiveness of union activity at the berm, we find that the bushes on the public property would make it difficult for patrons turning into the parking lot to read the Union's picket signs, and the Union's Ines sage would be diluted Additionally, picket signs at the central entrance could not be read by custom- ers who were about to enter the theater doors, in cluding those customers who did not use the cen tral entrance Finally, those areas on the berm without bushes where the pickets could have stood are not proximate to the central entrance used by 70 percent of the theater's customers In these cir cumstances, we find that communication of the Union's message from the public berm at the park ing lot entrances to the theater 's property was not a reasonably effective alternative to entry onto the Respondent s property Accommodating the private property and Sec- tion 7 rights pursuant to our analysis in Jean Coun try, we find that the Respondent's property interest would suffer some impairment if access were grant ed to the Union This impairment, however, would not be substantial, because the pickets stayed at least 8 feet from the theaters box office and front doors By contrast, in the absence of reasonable al ternative means of communication, the Union's Section 7 right would be "severely impaired-sub 10 As noted above the bushes at the central entrance extend from and along the curbed area of the entrance back toward the theater marquee It is not clear from the record whether the bushes would preclude the pickets from standing on the berm at the theaters central entrance In any event there was no reason for the Union to believe that the Re spondent would have permitted union activity in front of the bushes on the entranceway itself which is presumably the Respondents private property See fn 10 above i i There is no precise evidence in the record concerning the volume of traffic near the Jackson Cinema during the picketing Yet the fact that Wisner Street is a four lane street with a speed limit of 35 miles per hour and the presence of a shopping plaza and at least two other stores-in cluding a Sears Roebuck & Co -across the street from the theater sug gest that the area is commercial in character and that traffic is more than minimal 34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD stantially `destroyed' within the meaning of Bab cock & Wilcox "-without entry onto the theater property Jean Country, above, at 19 Therefore, under the facts of this case, we agree with the judge that the Section 7 right outweighed the pri- vate property right, and that the Union was enti- tled to engage in the picketing and handbilling it conducted on the sidewalk in front of the Jackson Cinema Accordingly, we conclude that the Re spondent's conduct on October 7 and 13, 1980, vio- lated Section 8(a)(1) of the Act ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, W S Butterfield Theatres, Inc, Jack- son, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified 1 Substitute the following for paragraph 1(a) "(a) Prohibiting representatives of Stage Em ployees and Motion Picture Operators Union, Local 274, International Alliance of Theatrical Stage Employees and Moving Picture Operators, AFL-CIO, from engaging in peaceful picketing and handbilling on the sidewalk in front of the Jackson Plaza Cinema Theatre in Jackson, Michi gan, to publicize the Union's position in collective bargaining negotiations with the Respondent, and requesting the Jackson police to remove those rep resentatives, as long as the picketing and handbill ing is conducted by a reasonable number of persons and does not unduly interfere with the normal use of the facility 2 Substitute the attached notice for that of the administrative law judge CHAIRMAN STEPHENS, concurring I concur in the result APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government To act together for other mutual aid or pro tection To choose not to engage in any of these protected concerted activities WE WILL NOT prohibit representatives of Stage Employees and Motion Picture Operators Union, Local 274, International Alliance of Theatrical Stage Employees and Moving Picture Operators, AFL-CIO from engaging in peaceful picketing and handbilling on the sidewalk in front of the Jackson Plaza Cinema Theatre in Jackson, Michigan, to publicize the Union's position in collective bargain- ing negotiations with us, and WE WILL NOT request the Jackson police to remove those representatives, as long as the picketing and handbilling is conduct ed by a reasonable number of persons and does not unduly interfere with the normal use of the facility WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act W S BUTTERFIELD THEATRES, INC Joseph Barker Esq, of Detroit Michigan, for the Gener al Counsel Theodore R Opperwall and Thomas Kienbaum Esq (Dickinson Wright Moon Van Dusen & Freeman), of Detroit, Michigan, for the Respondent DECISION STATEMENT OF THE CASE JAMES L ROSE Administrative Law Judge This matter was tried before me on September 29 1980 at Jackson Michigan on the General Counsels complaint which alleged that the Respondent violated Section 8(a)(1) of the National Labor Relations Act, 29 U S C § 151 et seq by attempting to stop a group of individ uals from picketing and handbilling at its Jackson Plaza Cinema Although substantially agreeing to the material facts the Respondent contends that it did not violate the Act in requiring the picketers to leave its private property On the record as whole including my observation of the witnesses, briefs, and arguments of counsel I make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice I JURISDICTION The Respondent is engaged in the retail operation of movie theatres in the State of Michigan with facilities in several cities including Jackson In the course of its busi ness the Respondent annually derives gross revenues in excess of $500 000 and annually purchases and causes to be transported from points outside the State of Michigan goods and materials valued in excess of $50 000 The Re spondent admits and I find that it is an employer en W S BUTTERFIELD THEATRES gaged in interstate commerce within the meaning of Sec tion 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATION INVOLVED Stage Employees and Motion Picture Operators Union Local 274 International Alliance of Theatrical Stage Employees and Moving Picture Operators, AFL- CIO (the Union) is admitted to be and I find is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICE A Background Facts The Union and the Respondent have been parties to a series of collective bargaining agreements the most recent of which expired on October 1, 1980 The bar gaining unit represented by the Union, and for which it negotiates with the Respondent, includes all projection ists at the Respondents theatres throughout the State, in cluding Jackson Prior to the expiration of the contract the parties en tered into negotiations but to the date of the hearing in this case, have been unable to agree to a successor One of the areas of disagreement concerned the proposed wage increase Another was management operating pro jection machines at the Jackson theatre Because a major area of disagreement focused on the Jackson facility, the Union was determined to picket and handbill at Jackson in order to inform the public of its position in negotia tions vis a vis the Respondent Thus on October 7 a group of 8 or 10 picketers ar rived at the theater about 6 45 p in They carried picket signs and gave handbills to customers who were arriving at the theater to attend one of the three shows scheduled to begin about 7 p m According to Lewis W Poppler a projectionist (with another company) and also the bust ness agent for the Union, about three or four of the pick eters came from East Lansing and another three or four from Jackson He testified that two of the picketers were projectionists who worked specifically for the Respond ent at the Jackson theater This was disputed by Dan Goodman the Respondents manager who testified that he did not see either of these individuals on the picket line on October 7 1 The theater building is located to the rear of a pie shaped lot the sides of which are 450 and 520 feet The front property line is a curve about 720 feet Most the area is devoted to customer parking, primarily in front but also on both sides of the theater From the front of the theater to the curb of Wisner Street is about 170 feet The property is owned by the Respondent and the thea ter is the only structure on the lot Between Wisner Street and the Respondents property line is a perm about 20 feet wide which is planted in grass and, at the r This conflict in testimony I view as immaterial infra Nevertheless it could be explained by the fact that Goodman only observed picketing on October 7 although there was picketing on October 13 and two subse quent occasions It may be that Poppler was mistaken concerning which date the two employees of the Jackson theater were present on the picket line-that they were not present on October 7 but were among the pick eters on October 13 or subsequently 35 central entrance to the theatre lot, also large bushes As most customers enter the parking lot via this entrance, to handbill at this point would require standing in the road In the front of the theater is a sidewalk about 16 feet deep (from curb to box office) and 40 feet long About half of this area is covered by a pavilion The picketers stationed themselves between the curb and the pillars that support the pavilion and walked in an oval about 8 feet by 30 feet Goodman seemed to indicate in his testimony that there was some interference with the customers, but there is otherwise no evidence of this Nor is the physi cal layout such that picketers would necessarily interfere with customers I find that the customers had sufficient room and opportunity to approach the box office and, having purchased their tickets, to go through the en trance doors Shortly after the picketers arrived on October 7, the Respondents supervisor of all theaters throughout the State, Vern Sicotte told them to leave and if they re fused to do so, he would call the police But they contin ued to picket until the early shows had started and then left They returned before the start of the second shows about 8 30 p in in order to picket Shortly after they had arrived two policeman came and told them that they would have to leave-that they could not picket on pri vate property After some discussion, the picketers de cided to leave 2 The picketers returned on October 13, again with picket and handbills and stationed themselves at the en trance to the theater building Again they were told to leave or the police would be called Again they refused and the police were called After a discussion with the police the picketers left in order to contact their counsel They then returned for the purposes of picketing the second show The police returned and at first indicated that they would arrest the picketers but then were ad wised that they had been overruled-that the city attor ney had determined the picketers could remain where they were There was subsequent picketing on two occasions without incident B Analysis There is no real dispute concerning the material facts or the applicable case author ty The parties agree that it is necessary to balance the Section 7 right to picket against an owner s right to control the manner and means of access to his private property As the United States Supreme Court said in NLRB v Babcock & Wilcox Co, 351 US 105 ( 1956) cited with approval by the Court in Hudgens v NLRB 424 U S 507 (1976) Section 2 Whether they left is another immaterial conflict in the testimony be tween Poppler and Goodman Poppler testified that following the con frontation with the policemen he and the rest of the pickets left the area Goodman testified that they went to the berm and continued to picket I tend to believe Poppler and note that by the time this ocurred there would have been little purpose to be served by picketing further Never theless whether they left for good or just went to the bern makes no difference in the outcome of this case 36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 7 rights of employees must be accommodated to the pri vate property rights of the employer with as little de struction of one as is consistent with the maintenance of the other In Hudgens the Court held that the right of employees to picket on private property is founded on Section 7 of the Act and not on the first amendment to the Constitu tion And the Court recognized that not all acts engaged in by employees or labor organizations even though pro tected by Section 7 are of the same strength Thus, said the Court, the point of accommodation may fall at dif fering points along the spectrum depending on the nature and strength of the respective Section 7 rights and pri vate property rights asserted in any given context Thus a union may well have a general right to engage in picketing for the purpose of attempting to organize a company s employees (as in Babcock & Wilcox) or to inform the public that the employer's working conditions are substandard for the area (as in Giant Food Markets, 241 NLRB 727 (1979), enf denied 633 F 2d 18 (6th Cir 1980)), but such may not be as fundamental to the Act or as strong a Section 7 right as, for instance, picketing in support of a strike (as in Seattle First National Bank, 243 NLRB 898 (1979), remanded 651 F 2d 1272 (9th Cir 1980)) Here the Respondent contends that the picketing was analogous to that in Babcock & Wilcox because it was en gaged in primarily, if not entirely, by nonemployees of the Respondent I disagree Even if none of the picketers on October 7 were employees of the Respondents Jack son theater (or any of the Respondents theaters) never theless the picketing was done on behalf of the Respond ent s employees and in furtherance of their bargaining dispute with the Respodent This then was not stranger picketing regardless of who actually carried the signs Beyond this I find that some of the picketers were in fact employees of the Respondent That three or four of the Respondents employees came from Lansing is un denied Collective bargaining is the core of the Act Thus picketing to advertise an economic strike or a bargaining position is a fundamental Section 7 right Seattle First National Bank supra Such was the picketing at Re spondent s Jackson theater I conclude that the nature of this picketing as fundamental to Section 7 outweighs the Respondents private property right to prohibit pick eters on its property The Respondent argues that the Union had alternate means of communicating with its intended audience Therefore picketing in front of the theater was not nec essary For instance, the Respondent contends that the Union could have picketed in the berm However the physical layout of the theater and the parking lot is such as to make picketing there an impractical way of com municating with potential customers There is not realis tic way that the Union could safely handbill customers entering the parking lot There is shrubbery on both sides of the main entrance and cars entering the parking lot come off a four lane street with a 35 mile per hour speed limit Finally the customers could not as they did talk to picketers The ability to handbill along with pick eting is important in communicating the intended mes sage In a similar situation the Board held it was unrealistic to require picketing to be confined to the entrance of the parking lot Giant Food Markets supra There were only two facilities in the shopping area and thus picketing at the street could reasonably be expected to reach the po tential audience Nevertheless the Board stated that the union should be allowed to picket at the entrance to the strore also because motorists entering the parking lot from the adjoining public road would be more con cerned with safely making their entrance than with read ing a picket sign or attempting to receive a handbill at the roadside 241 NLRB at 729 Note that the picketing in Giant Food was informational and was therefore a less strong Section 7 right than here And along these lines, the Respondent seeks to distin guish this case from others on grounds that here there was only one enterprise in the area Thus anyone enter ing the parking lot was a potential customer of Respond ent Although the number of business in the area may be a factor in weighing how close the pickets should be al lowed to come, it is not determinative here for the rea sons set forth above I note also that in Giant Food there were just two enterprises in the shopping area, and on the floor picketed in Seattle First National Bank there were just two businesses The Respondent also contends that the Union s audi ence could be identified and reached in some manner other than picketing at the theater For instance, the Union could have taken out an ad in the newspaper This was reasonably rejected by the Union on grounds that it would cost $200 to $300 And the Respondent suggested that the Union might have put handbills under windshield wipers of automo biles on the parking lot However there is no reason to believe that the Respondent would have given the Union permission to do this on its property when it sought to stop picketing and handbilling Finally there is no real evidence that Respondent s business operation was adversely affected or that poten tial customers were inconvenienced in any way as a result of the picketing Accordingly, I conclude that under the test set forth in Hudgens the Union s right to picket on behalf of Respondents employees at the Jack son theater outweighs the Respondents property right to control access to its property When the Respondent at temtped to have the pickets removed and in fact did so on October 7 and 13, 1980 the Respondent thereby interfered with the Section 7 rights of its employees and violated Section 8(a)(1) of the Act V THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The unfair labor proactices found occuring in connec tion with the Respondents business operations as de scribed above have a close, intimate and substantial rela tionship to trade traffic and commerce among the sev eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof within the meaning of Section 2(6) and (7) of the Act W S BUTTERFIELD THEATRES 37 THE REMEDY Having found the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed3 ORDER The Respondent, W S Butterfield Theaters, Inc , Jackson Michigan its officers, successors, agents, and as signs, shall I Cease and desist from (a) Causing or attempting to cause individuals engaged in picketing on the Respondent's premises, associated with negotiations for a collective bargaining agreement to cease such activity 3 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 (b) In any like or related manner interfering with, re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 4 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Post at its Jackson, Michigan facility copies of the attached notice marked Appendix 5 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondents author ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu tive days in conspicuous places including all places where notices to employees are customarily posted Rea sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply The facts of the case do not establish that the Respondent has a pro clivity to engage in unfair labor practices and accordingly the narrow injunctive relief is appropriate See H,ckmott Foods 242 NLRB 1357 (1979) b If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board