Target Stores

TARGET STORES Target Stores, Division of Dayton-Hudson Corpora- tion and Painters District Council No 2 of the International Brotherhood of Painters and Allied Trades, AFL-CIO Case 14-CA-18053 February 9, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On April 2, 1986, Administrative Law Judge Steven M Charno issued the attached decision The Respondent filed exceptions and a supporting brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions, as modified and explained below, and to adopt the recommended Order as modified We agree with the judge that the Respondent violated Section 8(a)(1) of the Act by refusing to permit nonemployee handbilling for the Union on its property We base our decision, however, on the analysis set forth in Jean Country, 291 NLRB No 4 (Sept 27, 1988) The Respondent operates a chain of retail stores, including a facility located on Dunn Road in St Louis, Missouri It leases both the building housing this store and the surrounding parking lot Target subleases space in the building to a grocery store and an appliance store The three stores share the parking lot and a front sidewalk According to ex- cerpted copies of the lease and subleases covering the Dunn Road property, its owner has granted Target the right of quiet enjoyment and exclusive possession" of the premises and the right to "rea sonable use of the public and parking areas " The subleases reserve to Target the right of control over the common areas and parking lot According to uncontroverted testimony, the Respondent has never been told by its landlord that it does not have daily control over its parking lot For years, the Respondent has maintained and strictly en forced an unposted companywide no solicitation, no-distribution policy prohibiting all nonbusiness use of its parking lot and facilities i During the 1982 Christmas season, this policy gained notoriety in local newspapers as a result of its application in denying The Salvation Army access for charitable solicitation at all Target store properties ' The United Way employee solicitation conducted by Target employ ees inside the store is the only authorized exception 933 The parking lot's main entrance is located on Dunn Road 500 feet south of the building Dunn Road is a two-lane shoulderless access road off an interstate highway Cars travel 30-50 miles per hour on Dunn Road and slow to 10-20 miles per hour to enter the Respondent's parking lot There is no traffic light at the main parking lot entrance A stop sign regulates exiting traffic There are four other secondary parking lot entrances 2 The Respondent employs an average of four per- sons in a "metro maintenance crew" to perform various maintenance tasks throughout 10 area stores These tasks include interior and exterior painting similar to work done by metropolitan painting contractors signatory to a collective bar- gaining agreement with the Union During the first 9 months of 1985, for instance, metro crewmem- bers spent approximately 25 percent of their time engaged in painting chores Throughout the fall of 1984 and the first half of 1985, Union Distract Representative Jim Engel communicated several times with Respondent Dis- tract Manager Ginger Chase Engel requested infor- mation concerning the crew's wages and benefits Engel informed Chase that if the Respondent's painting was done by employees who were receiv- ing substandard wages and benefits, the Union in- tended to inform the public of this fact by handbills or pickets Engel requested that any information to the contrary be brought to his attention Despite numerous opportunities, the Respondent never re- sponded to Engel's inquiries In June 1985,3 Engel visited the Respondent's store and noticed scaffolding but no painter The Respondent's assistant store manager was unable to answer Engel's wage rate inquiries, but agreed to inform the store manager of Engel's intention to advertise his belief concerning the crew's substand- ard wages and benefits On July 9 Engel observed a man painting at the Respondent's store When Engel asked about the painter's wage rate, he was told to contact the store manager Engel left the premises and estab- lished a nonemployee picket on public property at the main parking lot entrance on Dunn Road The picket walked on grassy areas on both sides of the entrance wearing a 20- by 14-inch sandwich-board sign The picket sign informed the public that em- 2 A southeast parking lot entrance adjacent to the main entrance pro vides access from a nearby bank Target Road a private drive running parallel to Dunn Road adjacent to the Respondents front sidewalk has both an east parking lot entrance from Old Halls Ferry Road and a west entrance from an adjoining parking lot servicing other businesses There is also an entrance at the back north end of the parking lot which ad ,toms a proposed road and services a residential area 3 All dates are in 1985 unless otherwise indicated 292 NLRB No 93 934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployees of Target doing painting work were paid less than area standards Picketing at the main entrance continued until July 16 According to the mutually corroborative and credited testimony of the Union's agents, based on personal observation, drivers entering Target's parking lot were generally unable to read the picket sign due to the speed of incoming traffic In addition, the store manager of the appliance store located adjacent to Target received four inquiries about the target of the picketing The parties stipu- lated that the grocery store located adjacent to Target received five or six similar customer inquir- ies On July 16 Engel decided to cease picketing That afternoon, Engel and another nonemployee commenced area standards informational handbill- ing on the sidewalk adjacent to the Target store entrance There is no evidence of customer com- plaints or interference with ingress to or egress from the Respondent's store Thereafter, Howard Turner, the store manager, twice approached the handbillers and asked them to leave because they were violating the Respondent's no-solicitation, no- distribution policy Turner approached a third time stating that he was filing a complaint Thereafter, the police arrived, conferred with the Respondent, and ultimately informed the handbillers that they could remain in place unless they interfered with customers Engel then left The other handbiller distributed the remainder of between 150 to 200 handbills during the next 2 hours Subsequently, the police returned and directed the handbiller to confine future handbilling to the parking lot en- trance or face arrest The following day, the handbiller distributed ap- proximately 50 handbills during a 3-hour period at the main parking lot entrance The handbiller's one attempt to stand in the middle of the narrow en- trance nearly caused an accident The handbiller therefore stood on the east side of the entrance, which required drivers of incoming vehicles to stop and lower the passenger-side window to take a handbill Later that morning, Turner approached and informed the handbiller that she was still on the Respondent's property and that handbilling at the parking lot entrance was dangerously blocking and slowing down traffic Thereafter, Engel rees- tablished a picket on the public property adjacent to the main entrance to the parking lot until paint- ing at the Respondent's store ceased The judge found that the Union's objective was the protection of area standards wage rates He fur- ther found that under precedent balancing conflict ing property and statutory interests, the Union was entitled to a reasonable means of communicating its area standards dispute with the Respondent's cus- tomers After finding that no reasonable nontre- spassory alternatives for communication existed, the judge concluded that the Respondent's conduct impermissibly interfered with protected, Section 7 activity in violation of Section 8(a)(1) of the Act In accord with the analysis set forth in Jean Coun- try, we agree with the judge's conclusion (Jean Country, 291 NLRB 11 (1988) In Jean Country, the Board clarified its analytical approach to access issues in light of the Supreme Court's two principal, guiding decisions in Babcock & Wilcox4 and Hudgens 5 The Board held that the availability of reasonable alternative means of com- munication must be considered in every access case, in conjunction with a consideration of the Section 7 rights and property rights involved The Board identified numerous illustrative factors that may be relevant to assessing the relative weight of the competing rights asserted as well as the avail- ability of alternative means 6 The Board then stated (291 NLRB at 14) 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 In applying the Jean Country analysis here, we address first the property right asserted The Re- spondent has undisputedly established a legitimate leasehold interest in the store building and sur- rounding parking lot 7 The relative strength of its right to maintain the privacy of this leasehold in terest depends, inter alia, on the use, public access restrictions, and relative size and openness of the leasehold 11 The Respondent's commercial enter- 4 NLRB Y Babcock & Wilcox Co 351 U S 105 (1956) 6 Hudgens v NLRB 424 U S 507 (1976) 8 The Board also held that there is an initial burden on the party claiming the property right to show through testimonial or documentary evidence that it has an interest in the property and what its interest in the property is A party has no right to object on the basis of other per sons property interests Jean Country supra at 13 fn 7 Similarly the General Counsel bears an initial burden on the alternative means factor to make a clear showing based on objective considerations rather than subjective impressions that reasonably effective alternative means were unavailable in the circumstances Id at 13 ° The General Counsels postheanng brief to the judge concedes that there is no significant difference for the purpose of resolving the issue he e between the holder of a leasehold interest and the owner of a fee simple interest 8 Jean Country supra at 13 TARGET STORES prise is located in a large building shared with two other businesses that the general public is invited to patronize These stores share an expansive parking lot that has several entrances providing unrestrict- ed access from adjacent public roads There is no evidence that the Respondent takes any particular measures to ascertain that individuals who walk in front of the stores or in the parking lot are poten- tial customers The Respondent does, however, re- strict the use of its parking lots and facilities through maintenance and enforcement of a no-so- licitation, no-distribution rule The maintenance of a nondiscriminatory rule makes the Respondent's property interest more substantial than that of simi- lar retail enterprises without any restrictions at all, but the property interest here is still less substantial than in more private nonretail settings Turning to the Section 7 activity at issue,9 we agree with the judge that the Union's objective was the protection of area wage and benefit stand- ards and that its investigation of the Respondent's compliance was as extensive and thorough as the circumstances permitted Although nonemployee area standards handbilling has lesser significance in the scheme of Section 7 than direct organizational solicitation or the protestation of unfair labor prac- tices, it is clearly protected 10 The area standards handbilling at issue was conducted at the store of the employer at a time when the metro mainte- nance crew, whose wage and benefit standards were the subject of the primary dispute, was paint- ing The handbillers were limited in number, peace- ful, and unobstructive The handbilling at the store- front customer entrance was in such proximity to the employer's customers that the Union could not have more carefully restricted its activities to reach the intended audience while not disturbing others In these circumstances, the Union's area standards handbilling, although not at the strong end of the spectrum of Section 7 rights, was certainly worthy of accommodation against substantial impairment Turning to the question of the Union's alterna- tive means of communicating its message,11 we 9 Jean Country supra at 13 states Factors that may be relevant to the consideration of a Section 7 right in any given case include but are not limited to the nature of the right the identity of the employer to which the right is directly related (e g the employer with whom a union has a primary dis pute) the relationship of the employer or other target to the proper ty to which access is sought the identity of the audience to which the communications concerning the Section 7 right are directed and the manner in which the activity related to that right is carried out 10 E g Jean Country supra at 17 ii Jean Country supra at 13 states Factors that may be relevant to the assessment of alternative means include but are not limited to the desirability avoiding the enmesh ment of neutrals in labor disputes the safety of attempting commune cations at alternative public sites the burden and expense of nontre spassory communication alternatives and most significantly the 935 find that the picketing at the main parking lot en- trance was generally ineffective and dangerous owing to the difficulty of reading the picket signs under existing traffic speed and safety conditions Handbilling at the main entrance also caused traffic congestion and was dangerous, the slow rate of dis- tribution through windows to car occupants also hampered communication of the Union's message Customer confusion and actual enmeshment of neu tral employers in the labor dispute by activity lo- cated at the main entrance was demonstrated by the several customer inquiries directed to the sublessees operating in building space adjacent to the Respondent's store Based on the foregoing, we conclude that picket- ing or handbilling on public property at the main parking lot entrance would substantially dilute the effectiveness of the Union' s message, cause confu- sion, and create safety problems 12 Although the Union had the opportunity to picket and/or hand- bill at alternative entrance locations, Engel testified that he examined these locations and decided to confine Section 7 activity to the "main entrance where the main bulk of the people came through "13 There is no indication that any other public locations or alternative media warrant con- sideration as a reasonable alternative for effective communication of the Union's area standards mes- sage In these circumstances, we find that the General Counsel has proved on the basis of objective record considerations that there were no reason- ably effective alternative means for the Union to communicate its message The Union's Section 7 right would be severely impaired if access were denied here, damage to the Respondent's property interest if access were granted would be compara- tively less, even in light of its no-solicitation, no distribution rule Under the Jean Country analysis, the Respondent's property interest was required to yield to the extent necessary to permit the limited, extent to which exclusive use of nontrespassory alternatives would dilute the effectiveness of the message 12 We also find that the unreasonableness of the Respondent s suggest ed alternative use of a larger stationary picket sign was objectively es tablished on the present record without the Union s having actually at tempted to employ such alternative Such picketing would still dilute the effectiveness of the Union s message when compared to storefront hand billing and would still be potentially dangerous and likely to enmesh neu trals iB In this regard Engel explained without contradiction that the east parking lot entrance on Old Halls Ferry Road was not heavily used and cars also entered that entrance pretty fast The back north end en trance was described by Engel as an exit which is not even on a main road and is used by people living in a nearby subdivision The west park ing lot entrance provided access via Target Road to the Respondents parking lot from an adjoining private parking lot used by other business es There was no stop sign regulating traffic between lots so it was there fore difficult for customers to read picket signs or for the union agents to distribute handbills there 936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD peaceful, and unobstructive primary area standards handbilling at its storefront entrance Accordingly, we conclude that the Respondent's refusal to permit the Union's storefront handbillmg violated 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 the Respond- ent, Target Stores, Division of Dayton-Hudson Corporation, St Louis, Missouri, 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 Painters Dis- trict Council No 2 of the International Brother- hood of Painters and Allied Trades, AFL-CIO, from engaging in limited, peaceful, and unobstruc- tive primary area standards handbilling in front of the Target Store on Dunn Road in St Louis, Mis- souri, as long as that activity continues to be con- ducted by a reasonable number of persons and does not unduly interfere with the normal use of facili- ties or operation of businesses not associated with the Target Store " 2 Substitute the attached notice for that of the administrative law judge APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 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 WE WILL NOT prohibit representatives of Paint- ers District Council No 2, International Brother hood of Painters and Allied Trades, AFL-CIO from engaging in limited, peaceful, and unobstruc- tive primary area standards handbilling in front of the Target Store on Dunn Road in St Louis, Mis- souri, as long as that activity continues to be con ducted by a reasonable number of persons and does not unduly interfere with the normal use of facili- ties or operation of businesses not associated with the Target Store 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 TARGET STORES, DIVISION OF DAYTON-HUDSON CORPORATION Terry L Potter Esq, for the General Counsel Robert Sykes Esq of Minneapolis Minnesota for the Respondent James I Singer Esq, of St Louis, Missouri, for the Charging Party DECISION STATEMENT OF THE CASE STEVEN M CHARNO, Administrative Law Judge In response to a charge filed 17 July 1985, a complaint was issued on 20 August 1985, alleging that Target Stores, Division of Dayton Hudson Corporation' (Respondent) violated Section 8(a)(1) of the National Labor Relations Act, by preventing the Painters District Council No 2 of the International Brotherhood of Painters and Allied Trades, AFL-CIO (the Union) from engaging in the pro tected distribution of handbills on Respondent 's premises Respondents answer denied the commission of any unfair labor practice A hearing was held before me on 21 and 22 October 19852 in St Louis Missouri Briefs were filed by the General Counsel , the Charging Party, and Respondent under extended due date of 31 December FINDINGS OF FACT I JURISDICTION Respondent is a Minnesota corporation which operates a retail store on Dunn Road in North St Louis County Missouri (Dunn Road Store) During the 12 month period preceding 31 July Respondent, in the course and conduct of its business operations within Missouri, pur chased and received goods valued in excess of $50,000 directly from points outside the State and derived gross revenues in excess of $500,000 It is admitted, and I find, that Respondent is an employer engaged in commerce within the meaning of the Act I find that the Union is a labor organization within the meaning of the Act II ALLEGED UNFAIR LABOR PRACTICES A Background The Union and the painting contractors in metropoli tan St Louis have entered a collective bargaining agree ment covering work done in the painting craft between 27 January 1983 and 30 November 1985 It is uncontest ed that the agreement is designed to protect the wages and benefits of painters working in the St Louis area Respondents Dunn Road Store is located in a large building situated at the back of a parking lot Along with Respondent the building houses an appliance store on the west side and a grocery store on the east The three stores share a sidewalk and adjoining driveway that run the length of the building Although Respondent main 'The Respondent was incorrectly identified in the complaint as Target Stores Inc At the heanng the complaint and answer were amended to reflect Respondents correct corporate name which appears above 2 All dates are 1985 unless otherwise indicated TARGET STORES tams control over the sidewalk driveway and parking lot, all are open to the public without any apparent re striction on access or use The parking lot's main en trance is located 500 feet from the building and is on Dunn Road, a two lane shoulderless access road for Interstate 270 Traffic on Dunn Road travels between 30 and 50 in p h , but slows to 10 to 20 in p h to enter the lot There is no traffic light governing traffic at the park ing lot entrance, and the only stop sign at that location regulates traffic exiting the lot If a car were to attempt to stop as it entered the lot any following car could not pass without moving into the opposite lane on Dunn Road Respondent employs a four man metro maintenance crew' (crew) to perform maintenance at its 10 stores in the St Louis area The tasks listed in the crew s job de scription include carpentry, plumbing, electrical work, cart repair, and all interior and exterior painting While Respondent has contracted out painting jobs in the recent past, in May 1985 it added two additional employ ees to the crew, at least in part because of an increase in the amount of painting that needed to be done Of the 5973 hours worked by the crew during the first 9 months of 1985, a total of 1489 5 hours were spent painting It is undisputed that the painting done by the crew is identi cal to the painting done by those contractors who are signatories to the collective bargaining agreement with the Union and that the members of the crew work in the same manner and use the same tools and equipment as the Union's members B Investigation and Warning In August 1984, Jim Engel, the Union s district repre sentative, was notified by one of the Union's members that the Dunn Road Store was being painted Engel con tacted Respondents district manager Ginger Chase to find out who was performing the painting Chase re sponded that the metro maintenance crew did Respond ent's painting When asked by Engel what the crew's wages were, Chase refused to respond Engel explained that if the crew were receiving wages below the area standard, he would have to advertise the fact Engel fol lowed this conversation with a 29 September 1984 letter to Chase which set forth Engel s intention to inform the public by handbills or pickets that Respondents employ ees who were performing painting work received wages and benefits below the area standard The letter also re quested that any evidence to the contrary be brought to Engel's attention Engel did not advertise on this occa sion because the painting at the store was completed shortly thereafter Between August 1984 and June 1985, Engel had three to four telephone conversations with Chase and sent her several more letters During each conversation and in every letter, Engel requested information about the crew's wages and benefits and informed Chase that, if painting continued to be done by employees who were receiving substandard wages and benefits, the Union would have to advertise the fact Engel s last phone con tact with Chase occurred during early June Although Chase was given multiple opportunities, she never re 937 sponded to Engels inquiries concerning Respondent s wage rates Later in June, Engel was again informed of painting at the Dunn Road store Engel went to the store and, on his arrival, noticed scaffolding but no painter He went inside and spoke to a man who identified himself as an assistant manager When the assistant manager professed an inability to answer Engel s questions concerning the painting, Engel asked him to tell the manager that Engel believed that Respondent was using its own employees to paint, that Engel assumed that the employees wages and benefits were substandard, and that the Union would have to advertise these facts The assistant manager stated that he would convey the message 3 On 9 July Engel returned to the Dunn Road Store and observed a man painting When Engel asked the man s pay rate, the painter told Engel to contact the store man ager Engel left the premises on this occasion without speaking to anyone inside the store Around 2 p in that day Engel established a picket at the parking lot en trance on Dunn Road The picketers walked on the grassy areas on both sides of the entrance, wearing 20 inch by 14 inch signs, which stated that the Union had an area standards dispute with Respondent At the end of the day, Engel dictated a letter to Howard Turner, man ager of the Dunn Road Store, which was virtually iden tical to the letters Engel had earlier sent to Chase That letter was typed and mailed on 10 July and received by Respondent on 12 July Picketing was maintained at the parking lot entrance until 16 July Due to the speed of incoming traffic and demands on the attention of those attempting to enter or leave the parking lot, drivers were generally unable to read the picket signs Very few vehicles actually slowed or stopped in an attempt to read the signs, and those that did often impeded the flow of traffic, resulting in the screeching of tires as other drivers attempted to avoid accidents 4 The practical unreadability of the signs en gendered public confusion in that the managers of both the appliance and grocery stores were questioned by cus tomers about who was being picketed C Handbilling On 16 July Engel ceased picketing because it was inef fective in conveying the Union s message At approxi mately 2 p in that day, Engel and union member Ruby Holmes began handbilling on the sidewalk adjacent to the store entrance The text of the handbill which was significantly more extensive than that appearing on the picket signs, is as follows 3 Engel so testified Manager Howard Turner and Assistant Managers Kim Dawkins and Dale Murphy all testified that they did not recall a conversation with Engel Murphy testified however that a man named Jung was employed as an assistant manager between June 1 and an un certain time toward the end of the month Jung was not called as a wit ness and Respondent offered no documentary evidence that would dem onstrate that Jung was not employed at the Dunn Road store during late June Accordingly I credit Engel s testimony on this point 4 1 credit the unrebutted testimony of picket Bockerstette to this effect 938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD NOTICE TO THE PUBLIC TARGET EMPLOYEES PERFORMING PAINTING AT THIS TARGET STORE TARGET pays it Painters less than the prevailing wages and fringe benefits for similar work pre formed [sic] in this area The members of our Union, who reside in this general area, have continually sought to improve and maintain Wages and Fringe Benefits for our families We believe that Employers who cut wages and fringe benefits, and attempt to reduce the earn ing power of the working people, are contributing to a situation which ultimately hurts us all WE BELIEVE THESE FACTS SHOULD BE CONSIDERED IN MAKING YOUR DECISION AS TO WHETHER OR NOT YOU WANT TO PATRONIZE THIS COMPANY This publicity campaign is addressed only to the public and is not addressed to any employer or em ployees We do not ask nor do we seek to compel any employer to recognize or bargain with us as the representative of its employees PAINTERS DISTRICT COUNCIL NO 2 AFL-CIO As customers passed by, Engel and Holmes distributed the handbills without interfering with the customers movement into or out of the store There is no evidence that Respondent received any complaints from its cus tomers concerning the Union s activities At approximately 2 p m on July 16, Turner ap proached Engel and Holmes, informed them that they were violating Respondents no solicitation policy, and asked them to leave When Engel declined to do so, Turner reentered the store About 10 minutes later, Turner again approached Engel and Holmes and told them he would file a complaint for illegal trespass and solicitation if they did not leave the premises Engel asked if Turner was going to have them arrested, and Turner reiterated that he would file a complaint After another 15 minutes had passed Turner approached Engel and Holmes a third time and stated that he had asked the handbillers to leave and that he was now going to file the complaint 5 Respondent then called the police who arrived a few minutes later After conferring with Respondent's man agement team, which had been joined by Chase the police came out of the store, spoke with the handbillers and, ultimately, told them that they could remain in front of the store as long as they did not bother the custom ers Engel then left the premises, and Holmes continued handbilling for the remainder of the day During a 2 5 Turner so testified Although Engel and Holmes were under the im pression that Turner had threatened to call the police neither appeared certain on cross-examination that Turner had actually used the word police I therefore infer that their impression was not an unreasonable consequence of hearing Turner state that he would complain concerning the handbillers illegal activities hour period that day, Holmes distributed between 150 and 200 handbills While Holmes was waiting for her ride at the end of the day, one of the police officers with whom she had talked earlier stopped and told her that she could no longer handbill in front of the store and would have to move to the parking lot entrance Holmes informed Engel who contacted the police department the Follow ing day Engel was told by the police that handbillers at the store entrance would be subject to arrest Engel thereafter directed Holmes to handbill at the parking lot entrance On 17 July Holmes began to distribute handbills at the parking lot entrance Because the entrance was narrow, it was impossible for her to stand in the middle Indeed, her one attempt to do so nearly resulted in an accident She therefore took a position to one side of the entrance which required the drivers of incoming vehicles to come to a stop and lower the passenger side window in order to take a handbill Again, the speed and volume of in coming traffic prevented most vehicles from stopping without risking an accident Holmes distributed approxi mately 50 handbills during a 4 hour period 6 At approxi mately 10 a in, Turner approached and informed Holmes that she was still on Respondent's property, that hand billing at the parking lot entrance was dangerous, and that she was blocking traffic When Holmes reported to Engel, he decided that handbilling at the parking lot en trance was unsafe and reestablished the Union s picket at that location, which was maintained until the painting of Respondent's store had ended D Discussion The General Counsel and the Union contend that Re spondent violated Section 8(a)(1) when Turner interfered with the Union's handbilling It is well established that handbilling undertaken in order to compel an employer to conform to area wage and benefit standards, is a pro tected activity within the meaning of the Act 7 E g Giant Food Markets 241 NLRB 727 (1979) enf denied 633 F 2d 18 (6th Cir 1980) see Hod Carriers Local 41 (Calumet Contractors), 133 NLRB 512 (1961) Respond ent argues, however that the protections of the Act do not apply to the Unions conduct in this case for three reasons First, the handbilling was not valid area stand ards activity because Respondent is not a direct competi tor of the employers that signed the collective bargaining agreement that established the area wage and benefit standards for the painting craft Second, the Union did not make an adequate attempt to determine he wages and benefits actually paid by Respondent Finally, the Union did not demonstrate that it had no reasonable al ternative means of communicating its message Respondents argument that the Union was not lawful ly acting to protect area standards is legally premised on a footnote in Sears Roebuck & Co v Carpenters 436 U S 180 206 fn 42 (1978), which states that the ration 8I credit Holmes uncontroverted testimony concerning these condi tions r It is uncontested that the Union s objective here was the protection of area wage and benefit standards rather than union recognition TARGET STORES ale for protecting area standards picketing is that a union has a legitimate interest in protecting the wage standards of its members who were employed by competitors of the picketed employer Based on that dictum, Respond ent maintains that, because it is not a painting contractor and its employees are not full time painters the wages and benefits it pays those employees have no effect on the standards of remuneration of area painters It is clear that, when Respondent pays substandard wages for painting work, it benefits from cheaper labor costs than those available to firms which employ union members Whether Respondent performs such work in house or contracts it out, the resulting adverse impact on the area standards of employment is identical In either case, the Union has a legitimate interest in protesting Respondent s actions See generally Plumbers Local 741 (Keith Riggs Plumbing), 137 NLRB 1125, 1126 (1962) Here, Respond ent's employees spend a significant portion of their time doing the same work in the same fashion with the same tools and equipment as do members of the Union If the performance of work in more than one craft were found to demonstrate the absence of an impact on area wage and benefit standards in either craft, no moderately Intel ligent employer need ever again find itself embroiled in an area standards dispute Such a facile evasion of the doctrine cannot be countenanced Respondent's second argument turns on the question of whether the Union investigated the wages and benefits paid by Respondent "with as great a degree of thorough ness as the circumstances will permit Teamsters Local 296 (Alpha Beta Markets), 205 NLRB 462, 471 (1973) Normally, the nature and extent of a union s investiga tion of the wages and benefits paid by an employer is of significance only as an aid in determining the union s ob jective in picketing or handbilling, a point that is not in issue in this case Bypassing this conceptual obstacle for the nonce and addressing Respondents contention di rectly, it is clear that the Union made the precise investi gatory effort repeatedly found by this Board to be cru cial-it asked the employer See, e g, Teamsters Local 544 (Better Home), 274 NLRB 164 (1985), Hotel & Res taurant Employees (Perry s) 207 NLRB 199, 204 (1973), Alpha Beta Markets, 205 NLRB at 472 Indeed, it did so on at least nine occasions between August 1984 and the date it began handbilling In each instance, Respondent refused to supply the requested information According ly I find that the Union s investigation was as extensive and thorough as the circumstances " which were totally within Respondent's control, would permit Respondents final argument is grounded on the premise that its property rights outweigh the Union s rights under Section 7 of the Act Conflicting property and statutory interests must be balanced in order to as certain the propriety of nonemployee access to private property Hudgens v NLRB, 424 U S 507 (1976), NLRB v Babcock & Wilcox Co, 351 U S 105 (1956) In an area standards dispute, a union is allowed a reasonable means of communicating with an employers customers The factors relevant to the question of reasonableness include traffic flow, congestion, safety, enmeshment of neutrals, and the opportunity to read the union's advertisement See Giant Food Markets, 241 NLRB at 728-729 (1979) 939 Respondents argument that the Union had available to it a reasonable alternative to handbilling at the store en trance is not supported by the record Picketing at the parking lot entrance was shown to be ineffective, 8 poten tially dangerous to motorists, and likely to enmesh the neutral appliance and grocery stores in the dispute Handbilling at the parking lot entrance caused conges tion and a constant danger of automobile collisions Its ineffectiveness is demonstrated by the fact that the Union distributed one eighth to one sixth as many handbills at the parking lot entrance as it did at the store entrance during a similar timespan Handbilling at the store en trance took place in an unposted area which was open to the public, and the Union s handbilling activity did not result in any disturbance or interruption of the flow of customers into or out of Respondents store I therefore find that the Union employed the only reasonable means of effectively communicating its message Accordingly, I find that Respondent's demands that the Union s handbillers leave the premises, its threat to file a complaint for illegal trespass if the handbillers re mained on the premises, and its request that the police arrest the handbillers if they remained on the premises are impermissible interferences with the Union s Section 7 rights See Giant Food Markets, 241 NLRB at 729 I further find that these acts by Respondent are unfair labor practices violative of Section 8(a)(1) of the Act CONCLUSIONS OF LAW 1 The Respondent is an employer engaged in com merce within the meaning of Section 2(2), (6), and (7) of the Act 2 The Union is a labor organization within the mean ing of Section 2(5) of the Act 3 By prohibiting representatives of the Union from distributing handbills as part of the Union s protected concerted activity by (a) demanding that the representa lives leave the premises, (b) threatening to file a com plaint against them for illegal activity if they did not leave the premises, and (c) asking the police to arrest them if they did not leave the premises Respondent en gaged in unfair labor practices in violation of Section 8(a)(1) of the Act 4 The unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed9 8 Respondents suggestion that the Union should have used a larger sign is disingenuous The necessary complexity of the message set forth in the Union s handbill together with traffic speed and safety conditions would have required a billboard display in order for that message to be read by Respondents customers 9If 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 940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER The Respondent Target Stores, Division of Dayton Hudson Corporation, St Louis, Missouri, its officers, agents, successors and assigns, shall 1 Cease and desist from (a) Prohibiting representatives of the Union from dis tnbuting handbills as part of the Union's protected con certed activity (b) In any like or related manner interfering with, re straining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Post at its Dunn Road Store copies of the attached notice marked Appendix 10 Copies of the notice, on 10 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 forms provided by the Regional Director for Region 14 after being signed by the Respondents authorized repre sentative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other maten al (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 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