Best Co.

BEST CO 845 Dolgin's, a Best Company and IBEW Local 545, af- filiated with International Brotherhood of Elec- trical Workers, AFL-CIO and Laborers Inter- national Union of North America, Local No 579 and Local No 110 of the Carpenters Dis- trict Council of Greater Kansas City and Vicini- ty, Jointly and IBEW Local 124, affiliated with International Brotherhood of Electrical Work- ers, AFL-CIO Cases 17-CA-13038, 17-CA- 13041, and 17-CA-13073 April 26, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN, HIGGINS, AND DEVANEY On April 29, 1987, Administrative Law Judge Peter E Donnelly issued the attached decision The General Counsel and Charging Parties IBEW Locals 545 and 124 filed exceptions and supporting briefs 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 briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order This case involves the Respondent's order that union representatives who were handbilling its cus- tomers at five of its stores leave its property The Unions handbilled because the Respondent was having remodeling work done at each of these stores by nonunion contractors who the Unions be- lieved paid below the area standards The handbills informed potential customers of this and requested them not to patronize the stores and to express their concern to the Respondent's management The first instance of handbilling occurred on July 2, 1986, at the Respondent's St Joseph, Mis- souri store 1 Three representatives of local unions stationed themselves near the entrance of the store After handbilling for about 10 minutes, the Re spondent's store manager told them that they were on private property and asked them to leave One handbiller explained that they believed that they had a right to handbill there and the manager stated that they would have to leave They then left The business manager for the IBEW local testi- fied that they did not handbill at the parking lot i The St Joseph store is surrounded by its own parking lot that has two entrances on Belt Highway a four lane road that has a 40-mile per hour speed limit and two entrances on Cook Road a two lane road with a 25 mile per hour speed limit Separating the parking lot and the roads are grassy areas about 25 feet wide There are no sidewalks entrances because of the danger to themselves and to the cars He noted the danger of rear-end colli sions because one would have to stop the car to get a handbill Later in the month the Respondent began re- modeling work in four of its Kansas City area stores using a nonunion electrical subcontractor with whom the IBEW local had had prior disputes On July 31 two IBEW representatives were sent to handbill at each of the four stores At the North Kansas City, Missouri store2 an IBEW local business representative and a local member stationed themselves about 18 feet from either side of the entrance to the Respondent's store about 6 25 in the evening After about 5 min- utes of handbilling a manager of the store told them that they were on private property and would have to distribute the handbills on the grassy area off the Respondent's property When one of the handbillers stated that he thought that they had a right to be there, the manager repeated his statement and motioned to where they should go After this conversation another employee of the Respondent told the handbillers that the police were being called The police arrived about 7 35 p in and told the handbillers that they had to leave the Respondent's property, which they did The business representative testified that they had not handbilled from the public grassy area be cause their first concern was safety, the customers' and their own At the Overland Park, Kansas store3 an IBEW local business representative was stationed at one entrance and a local union member was stationed at the other entrance about 6 20 in the evening After about 10 minutes of handbilling the assistant manager and a security guard told them that they were trespassing and would have to be on the public sidewalk When the business agent said that they had a right to handbill there and declined to leave, the assistant manager said that he would take appropriate measures The Respondent called the 2 The store is surrounded by its own parking lot The lot has two en trances on Burlington Street that has six lanes of traffic no turn lane and a 40-mile per hour speed limit an entrance on 26th Avenue a two lane 35 mile per hour street and an entrance on Terry Street which had a 35 mile per hour speed limit The parking lots and the streets are separated by public grassy strips between 6 and 12 feet in depth There is a side walk on at least the Terry Street side 3 The store with its parking lot in front of it faces Santa Fe Drive a four lane 40-mile per hour street The most-often used entrance to the Respondents store is entered by a turn lane off of Santa Fe This en trance has two incoming lanes and two exiting lanes with a median in between Some cars use this entrance to go to a strip shopping center ad jacent to the Respondent s property that similarly faces Santa Fe or to go to a fast food restaurant near the entrance The Respondents parking lot also had an entrance on Farley Avenue which has two lanes and a 30- mile per hour speed limit There is a public grassy area and sidewalk on the Santa Fe Avenue side of the parking lot 293 NLRB No 102 846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD police and in another 10 minutes three police cars arrived A policeman asked the handbillers to leave the Respondent's property, which they did The business representative testified that they handbilled there rather than on public areas be- cause they wanted to reach the Respondent's cus tomers, not customers of the other stores there, and because of safety He noted that in order to hand bill a driver of a car the handbiller would have to be in the street At the Kansas City, Kansas store4 a local busi- ness representative and a local member began handbilling near the store's entrance about 6 o'clock in the evening About one half hour later the assistant manager told the handbillers that it was the store's policy not to allow soliciting on its property and he asked the handbillers to move to the public area where picketers had been previous- ly The assistant manager then left, and the hand billers remained until 9 p m The business representative testified that there was no other way to handbill at that store and that because there was no sidewalk, he would have had to stand in the street At the Kansas City, Missouri store 5 a local busi- ness representative and a local member stationed themselves near the store entrance about 6 20 in the evening About 6 40 the assistant manager told the handbillers that they would have to leave be cause they were on private property The Re- spondent then called the police who arrived about 7 10 and told the handbillers that they would have to cease distributing handbills The handbillers left about 7 25 The business representative testified that they did not handbill at the parking lot entrances because it would have impeded traffic and would have been unsafe He noted that in order to give a handbill to a driver he would have had to stand in the en- trance where cars passed or, if he stood on the grass, the driver, if there were no passengers, would have to stop, roll down his window, and lean over to get the handbill He stated that he saw that many of the cars using the parking lot en- trance were without passengers 4 The store is surrounded by a parking lot that has one entrance on State Avenue which has two lanes a turn lane and a 40-mile per hour speed limit three entrances on 74th Street that has two lanes and a 30- mile per hour speed limit and an entrance on Armstrong Avenue which has a 30-mile per hour speed limit The parking lot and the street are sep arated by a public grassy strip There are no sidewalks 5 The store is surrounded by a parking lot that has two entrances on Ararat Road a two lane 25 mile per hour road an entrance on Bristol Road also a two lane 25 mile pe hour road and an entrance from an unnamed street that also leads to a two store shopping area Separating the parking lot and the street is a public grassy strip about 10 feet wide The judge analyzed this case under Fairmont Hotels He read that case to hold that when the Section 7 right or the property right substantially outweighs the other it is unnecessary to consider whether there were reasonable, effective alterna tive means for a union to communicate its message He found that here the Respondent's property right substantially outweighed the Unions' Section 7 right and dismissed the complaint without consid- ering whether reasonable alternative means were available After the judge's decision issued, the Board de- cided Jean Country,' which clarified that alterna- tive means of communication must be considered in all access cases where a legitimate property interest and a Section 7 right must be accommodated The Board further held (slip op at 9-10) 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 reasonable 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 Regarding the property rights, we note that the property was generally held open to the public but that the Respondent had a policy of excluding so- licitors of any kind from its parking lots As the judge noted, each store was freestanding and sur- rounded by its own parking lot, although, in the case of the Overland Park store, an entrance to the parking lot was shared with other stores On these facts, we find that the Respondent has a legitimate and relatively substantial property interest The Section 7 right involved here was the Unions' right to advise the public that certain con tractors working on the Respondent's buildings paid less than the area wage Although, as the judge noted, the dispute was between the Unions and Dolgin's contractors, and the handbilling was not directed at the Respondent's employees, it did take place in the same time period that employees of the primary employers were working on the Re spondent's premises Thus, there was a greater con- nection between the Respondent and the activity than was present in Fairmont, in which the union's dispute was with a supplier of goods to the em ployer Further, the handbilling was conducted in a 6 282 NLRB 139 (1986) 7 291 NLRB 11 (1988) BEST CO peaceful and limited manner and did not unduly interfere with the normal operation of the Re- spondent's business 8 Under the circumstances, we find that the Unions' Section 7 right, although not on the strong end of the spectrum of Section 7 rights, is also worthy of protection against substan- tial impairment Regarding whether reasonable, effective alterna- tive means of communication existed, we must ex- amine the possibility of handbilling from the public property near the entrances to the stores' parking lots 9 As the witnesses noted, a car must stop to re- ceive a handbill The most heavily used entrances were on busy streets with speed limits of between 25 and 40 miles per hour For a car to stop on a public street or in the entrance to the parking lot from the street would create safety hazards for both the handbillers and the car's occupants This danger is compounded if a car with a driver and no passenger attempted to obtain a handbill In that case, the driver would have to lean to the far side of his car or the handbiller would have to place himself within a traffic lane Moreover, in the case of the Overland Park store, handbillers at the main entrance would not be able to distinguish the Re- spondent's customers from those of other stores who used that entrance, thereby reducing the effec- tiveness of the handbilling In these circumstances, we find that there were no safe, or reasonable al- ternative means available to the Unions to commu nicate their message On our evaluation of the Section 7 rights, prop erty rights, and alternative means of communica- tion pursuant to our analysis in Jean Country, we find that the Respondent's property interest would suffer some impairment if access were granted to the Unions That impairment, however, would not be substantial, given that the handbilling resulted in minimal interference with the Respondent's busi- ness By contrast, the General Counsel has shown the absence of reasonable alternative means of communication and that without access to the Re- spondent's property, the Section 7 right would be 8 The evidence indicates that the stores experienced little disruption due to the handbilling Three managers noted that a few employees came out to see what was going on but this reaction was characterized by one As they would with any thing out of the ordinary or un usual they went to the front window to look Regarding the littering problem mentioned by the judge the one manager who testified about it stated that most of the handbills ended up in the trash can he placed at the front of the store With regard to the judge s noting that the custom ers expressed displeasure to the management the testimony indicates that the displeasure was intertwined with the store remodeling which caused merchandise to be moved As the judge stated during the hearing im plicit within the concept of handbilling there is a certain mini mal amount of disruption in a customer s normal activity 9 We do not find that this is the exceptional case in which mass media constitutes a reasonable alternative See Jean Country supra at 13 and 18 fn 18 847 substantially impaired Jean Country, at See also W S Butterfield Theaters, 292 NLRB 30 (1988) Accordingly, we find that the Respondent's orders to the handbillers to leave its property violated Section 8(a)(1) of the Act CONCLUSIONS OF LAW 1 The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 IBEW Locals 124 and 545 , affiliated with International Brotherhood of Electrical Workers, AFL-CIO, Laborers International Union of North America, Local No 579 , and Local No 110 of the Carpenters District Council of Greater Kansas City and Vicinity are labor organizations within the meaning of Section 2(5) of the Act 3 By ordering the union representatives to leave its property at St Joseph, North Kansas City, and Kansas City, Missouri, and Kansas City and Over- land Park, Kansas, the Respondent interfered with the exercise of Section 7 rights in violation of Sec tion 8(a)(1) of the Act REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act 10 ORDER The National Labor Relations Board orders that the Respondent , Dolgin's, A Best Company, St Joseph, North Kansas City , and Kansas City, Mis soup, and Kansas City and Overland Park, Kansas, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Ordering representatives of IBEW Locals 124 or 545, affiliated with International Brotherhood of Electrical Workers, AFL-CIO, Laborers Interna tional Union of North Amenca , Local No 579, or Local No 110 of the Carpenters District Council of Greater Kansas City and Vicinity not to engage in peaceful, informational handbilling protected by the Act at its stores in St Joseph , North Kansas City, and Kansas City, Missouri, and Kansas City and Overland Park, Kansas, as long as the activity is conducted by a reasonable number of persons and does not unduly interfere with the normal use of facilities or operation of the business 10 The General Counsel excepted inter alia to the judges failure to grant a wsitatonal clause In the circumstances of this case we do not find a visitatonal clause necessary Cherokee Marine Terminal 287 NLRB 1080 (1988) 848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Post at its stores in St Joseph, North Kansas City, and Kansas City, Missouri, and Kansas City and Overland Park, Kansas, copies of the attached notice marked "Appendix "I I Copies of the notice, on forms provided by the Regional Director for Region 17, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to em- ployees 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 material (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply I I 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 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 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 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 order representatives of IBEW Locals 124 or 545 , affiliated with International Brotherhood of Electrical Workers, AFL-CIO, Laborers International Union of North America, Local No 579 , or Local No 110 of the Carpenters District Council of Greater Kansas City and Vicin ity not to engage in peaceful, informational hand billing protected by the Act at our stores in St Joseph, North Kansas City, and Kansas City, Mis- souri, and Kansas City and Overland Park, Kansas, as long as that activity does not interfere with the normal use of facilities or operations of the busi- ness We will not in any like or related manner inter- fere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act DOLGIN'S, A BEST COMPANY Constance N Traylor Esq for the General Counsel William W Treverton Esq, of Bellevue Washington for the Respondent John T Hurley Esq, of Kansas City Missouri, for Charging Parties IBEW Local 545 and IBEW Local 124 DECISION STATEMENT OF THE CASE PETER E DONNELLY, Administrative Law Judge The charge in Case 17-CA-13038 was filed by IBEW Local 545, affiliated with International Brotherhood of Electri cal Workers, AFL-CIO (IBEW Local 545), on 3 July 1986 That charge was amended on 30 July 1986 The charge in Case 17-CA-13041 was jointly filed by Labor ers International Union of North America, Local No 579 and Local No 110 of the Carpenters Distract Coun cil of Greater Kansas City and Vicinity (Laborers Local 579 and Carpenters Local 110, respectively), on 7 July 1986 That charge was amended on 31 July 1986 An order consolidating cases, consolidated complaint and notice of hearing issued on 6 August 1986 The charge in Case 17-CA-13073 was filed by IBEW Local 124 affih ated with International Brotherhood of Electrical Work ers, AFL-CIO (IBEW Local 124), on 4 August 1986 An order further consolidating cases consolidated complaint and notice of hearing issued on 21 August 1986 consoli dating all the above cases and alleging that Respondent violated Section 8(a)(1) of the Act by denying access to union handbilling at the entrances to various stores since that handbilling was protected under the publicity pro viso to Section 8(b)(4) of the Act Answers were timely filed by Respondent A hearing thereon was held before me in Kansas City Kansas, on 15 and 16 October 1986 Briefs have been timely filed by the General Counsel Respondent and Charging Parties Locals 545 and 124 which have been duly considered I FINDINGS OF FACT I EMPLOYERS BUSINESS The Employer is engaged in the operation of retail jewelry and merchandise stores with stores at various locations including the stores involved here which are at St Joseph, Missouri (the St Joseph store) North Kansas I Transcript corrections have been noted and corrected BEST CO City, Missouri (the North Kansas City store), Kansas City, Missouri (the Kansas City, Missouri store), Kansas City, Kansas (the Kansas City, Kansas store), and Over land Park, Kansas (the Overland Park store) During the past 12 months the Employer, in the course and conduct of its business operations, purchased and received at each of the above facilities products, goods, and materials valued in excess of $50,000 directly from points outside the State where each is located During the past 12 months, the Employer, in the course and conduct of its operations above, derived gross revenues in excess of $50,000 The complaint alleges, the answer admits, and I find that the Employer is an employer engaged in com merce within the meaning of Section 2(6) and (7) of the Act II LABOR ORGANIZATIONS The complaint alleges , Respondent at the hearing stip ulated, and accordingly I fmd that each of the above named labor organizations are labor organizations within the meaning of Section 2(5) of the Act in the alleged unfair labor Practices A Facts In June 1986,2 Respondent began remodeling projects at the five stores in issue All five stores remained open during the remodeling work On about 23 June, Roger Brooks, business manager of IBEW Local 545 in St Joseph, Missouri, having learned about remodeling work to be done at the Respondent s St Joseph, Missouri store called Respondents home of fices in Baltimore and was advised that Summit Electric Company of Houston, Texas, a nonunion contractor, had been awarded the bid for the electrical work Brooks then called Jerry Murphy, business representative for Carpenters Local 110, and Eugene Browning, business manager of Laborers Local 579 and they visited the St Joseph store on or about 24 June, whereupon they satis feed themselves that the electrical contractor ( Summit) and the general contractor (F J W Co) were nonunion On 2 July they all returned to the store for the pur pose of handbilling customers of Respondent About 1 30 p in, they positioned themselves on the sidewalk outside the customer entrance and began to handbill customers entering the store 3 After about 10 minutes Store Man 2 All dates refer to 1986 unless otherwise indicated 3 The handbill read CUT RATE WAGES ARE NOT FAIR UNLESS MERCHANDISE PRICES ARE ALSO CUT RATE Dolgin s is using out of state contractors to remodel its store and who pay their employees wages and benefits below the area stand ards our Union has established for employees in this area We ask for your support in our protest against substandard wages Please do not patronize Dolgin s until it publicly promises that all remodeling in its store will be done using contractors who pay their employees fair wages and fringe benefits IF YOU DECIDE TO ENTER THE STORE please express to the store manager your concern over these substandard wages and your support of our efforts 849 ager Phillip Bell went outside and asked the handbillers to remove themselves from the premises because it was private property After expressing their disagreement with Bell s position, they did, however, leave the proper ty Bell also testified that while the handbilling went on, store employees went to the front window to see what was happening Regarding the pamphlets, Bell testified that some of them were being thrown on the floor by customers and some were being thrown into shopping carts A few days later Brooks called Emil Ducolumbier, business manager for IBEW Local 124 in Kansas City Missouri, to advise him that Summit was doing remodel ing work at Respondent's St Joseph, Missouri store and asked if he knew of any remodeling work being done at Dolgin's stores in the Kansas City area At that time Du columbier said that he was not aware of any, but that he would look into it Ducolumbier instructed his assistants, business agents of Local 124, to check the Dolgin's stores in the Kansas City area and was advised by them that remodeling was being done at the North Kansas City store by Summit and at the Kansas City, Missouri store by South Kansas City Electric Company, also a nonunion electrical contractor, with which Local 124 had prior disputes over the matter of South Kansas City Electric s failure to pay the wage rates established in union contracts for the area Ducolumbier testified that, from information given to him by former South Kansas City Electric employees, the wage scale was about $7 to $14 per hour less than the union contract wage scale of $21 28 per hour On 30 July, Ducolumbier called a meeting with his four business agents John Zorn Joe Hoge, Phillip Mornsey and Phillip Nichols A decision was made to handbill the main entrances of the four Dolgin s stores in the metropolitan Kansas City area Ducolumbier told them that he wanted no confrontations with the police and that they were to be courteous Each was assigned a store and was advised to bring one volunteer to assist 4 About 6 30 p in on 31 July, the handbilling began, per instructions at all four Dolgin's stores 5 Without detail ing the handbilling activity at each of the stores it suf fices to say that at these locations handbilling was con ducted for a short period of time from 10 to 15 minutes to about 1 hour Representatives of the stores came out and advised the handbillers that they were on private property and would have to leave Phillip Barnhart as We are appealing only to the public-the consumer We are not seeking to induce any person to cease work or to refuse to make de liveries I B E W LOCAL 545 LABORERS LOCAL 579 CARPENTER S LOCAL i io The accuracy of the handbills contention that the nonunion subcon tractors pay below the area union contract wages and benefits is not dis puted and is otherwise supported by the testimony of the Charging Par ties 4 The parties stipulated that none of the handbillers were employees of Dolgin s 5 The wording of the handbills was identical to the wording on the handbill used at the St Joseph Missouri location except that the Union appeared as IBEW # 124 850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sistant showroom manager at the Overland Park store, testified that some employees came out to see what was going on Also, that customers were discarding the hand bills so he put a trash can just outside the store entrance According to Barnhart, some customers complained to him about having to contend with the handbilling There has been no picketing activity since 31 July and the re modeling work is substantially completed Ronald Sextro, district manager for Respondent, testa feed that Respondent has had an unwritten rule during the 14 years of his employment which prohibits solicita tion on Dolgin s premises of any nonemployee organza tion or activity There had been a lone exception to that rule which allowed the Salvation Army to solicit kettle contributions at Christmastime, but that exception was terminated in 1984 The record discloses no other in stances where nonemployee solicitation was allowed on Dolgin s private property 6 B Discussion and Analysis Historically, when picketing or handbilling occurs on the premises of an employer, the Board and the courts have attempted to balance the union s statutory right under the Act to engage in such activities against the employer's right to exclude those activities' on his pn vate property 8 In Giant Food Markets, 241 NLRB 727 (1979), the union engaged in nonemployee area standards picketing and handbilling directed at customers of Giant, the tar geted employer, who shared a privately owned building with Kresge a neutral employer That building was sep arated from the street by a private parking lot The pick eting took place in front of the building 9 The Board analyzed the strength of the union s Section 7 right and concluded that because the activity had an area stand ards objective, and because the intended audience [cus tomers of Giant] is not readily identifiable until the audi ence attempts to enter the store such other means of communication cannot be considered reasonable in rela tion to their possible effectiveness The Board further notes that requiring the union to picket and handbill off the private property would too greatly dilute the Union s message for it to be meaningful 10 In a recently decided case Fairmont Hotel 282 NLRB 139 (1986) the union was engaged in area standards handbilling by nonemployees at the main entrance of the 6 Respondent urges that three newspaper articles reporting and criticiz mg Respondents decision to deny access to the Salvation Army at Christmastime were relevant and should have been admitted into evi dence However the only relevant issue was the existence and enforce merit of the no solicitation policy which is fully supported by direct evi dence Hearsay newspaper articles reporting and criticizing that decision were properly excluded 7 In the instant case the right to handbill asserted by the Union is found in the publicity proviso to Sec 8(b)(4) which excepts from the prohibitions of Sec 8(b)(4) publicity other than picketing for the purpose of truthfully advising the public including consumers and members of a labor organiza tion that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distribut ed by another employer 8 NLRB v Babcock & Wilcox Co 351 U S 105 (1956) 8 Giant Food Markets supra at 729 10 Giant Food Markets supra at 729 Fairmont Hotel The union s dispute was not with the Fairmont Hotel but with a baker who supplied the hotel with some of its baked goods The handbills requested the public not to patronize the hotel until the hotel stopped doing business with the baker In Fairmont, the Board was critical of the approach taken in the Giant case, stating On the principal ground that the intended audi ence in Giant was less easily identifiable, the Board distinguished Babcock & Wilcox which involved or ganizing activity Thus, while acknowledging that the relative strength of Section 7 rights is significant under Hudgens [Hudgens v NLRB 424 U S 507 (1976)], Giants deferral in the final analysis to a test of available reasonable alternatives suggests that a union engaging in area standards activity would in evitably find it easier to establish its right to access than a union engaged in organizing activity In our view this is not a mode of analysis contemplated by the Supreme Court i 1 The Board in Fairmont, supra at 142, then went on to set out its view in the following language We believe that in cases such as the instant one therefore, it is the Boards task first to weigh the relative strength of each party s claim If the prop erty owner s claim is a strong one while the Sec tion 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 compelling, then the Section 7 right will pre wail Only in those cases where the respective claims are relatively equal in strength will effective alternative means of communication become deter minative Indeed if the Board were to focus primar ily on the availability of alternative means there is a substantial risk that relatively strong claims of pn vate property rights would be required to yield to relatively weak claims of Section 7 rights Similarly, it is fully conceivable that utilization of alternative means as the inevitable litmus test would result in property rights yielding more frequently to weaker Section 7 rights such as area standards activity than to paramount Section 7 rights such as organizing because of the latter s more easily identifiable audi ence Such a result is clearly not envisioned by the Court or required by the Act and has been called into question by at least one court of appeals The Board then undertook to analyze the union s Sec tion 7 rights in comparison to the respondents property rights and with respect to the hotel's property rights stated In sum in excluding persons engaged in handbilling from the privately owned area connecting the hotel s front entrance with the private driveway that serves that entrance Fairmont was asserting a " Fairmort Hotel supra at 141 BEST CO substantial private property interest in limiting the use to which its property was put With respect to tFe union's Section 7 rights the Board stated in Fairmont, supra at 143 In short, 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 standards one, and the employees of which stood to reap no benefit, not even an incidental one, if the Union achieved its ultimate objective of improved wages for the employees of Bakers of Paris On these facts, the Board concluded Under these circumstances, the Section 7 rights being exercised by the Union in its handbilling ac tivity at the hotel was not at the core of the pur pose for which the NLRA was enacted Because in our view the property rights asserted by Fair mont far outweigh the Section 7 rights asserted by the Union, we conclude that Fairmont did not vio late the Act when it barred the Union s agents from using the privately owned area adjacent to the main entrance of the hotel as a location from which to distribute handbills in support of the Union s area standards dispute with Bakers of Paris Further more because the rights asserted by Fairmont and the Union are not relatively equal , we deem it un necessary to consider whether reasonable alterna tive means by which the Union could have commu nicated its message were available [Fairmont, supra at 143 ] In evaluating Dolgin s property rights in the instant case, we see that each of the Dolgin 's stores involved is a separately located, freestanding building surrounded by a parking lot with access to surrounding roadways All of this suggests a degree of privacy not present when many stores which are located in shopping malls and parking lots are used by the customers who may be shopping at any of the other stores in the mail In addi tion Dolgin s has a rule against solicitation by nonem ployees on its property which appears to have been con sistently enforced except for Salvation Army solicitation at Christmastime, and even that exception was discontin ued in 1984 In addition the handbilling did create a cer tarn amount of disruption to Dolgin s normal retail oper ation Some employees left their work to see what was happening and some of the customers were disgruntled by the `inconvenience and expressed their displeasure to management The pamphlets themselves promote in 851 terference with normal operations by requesting patrons to express their concern over substandard wages to the store manager In addition certain littering and cleanup problems were created by customers discarding their pamphlets A review of the Union s Section 7 rights disclose that under the criteria of Fairmont, these were not so substan tial This was not union activity engaged in for more substantial organizational or economic objectives The handbilling was conducted by nonemployee union orga nizers, for the purpose of advising customers of Dolgin s that certain of Dolgin s contractors paid less than union contract wages This is all that the publicity proviso allows as limited relief to the general prohibition against involving neutral employers in disputes between a union and the employer with whom the union has the dispute The dispute was between the Union and Dolgin s con tractors It did not affect any employees of Dolgin's and would not have affected them even assuming the success of the handbilling s objectives This is a substantial con sideration, as the Board points out in Fairmont In these circumstances, I conclude that Dolgin s property rights substantially outweigh the Union s rights under the Act and that Respondent did not violate Section 8 (a)(1) of the Act by denying access to its private property for the handbilling in issue and ordering the handbillers off its premises Much of the testimony adduced at the hearing con cerned the matter of access or lack of access by the Union in its efforts to reach the customers of Respondent with its message To this end testimony was taken con cerning access or lack of it to Dolgin s customers through television radio, newspapers, and billboards The testimony reflects the numbers reached by the vari ous media and the expense Much testimony also treated the possibility of reaching Dolgin's customers by hand billing the public entrances to Dolgin's private parking lot from the surrounding streets However under the cn teria established in Fairmont, the question of alternative means of communication becomes a factor only when the conflicting rights are relatively equal This being the case, and having determined under Fairmont, that Doi gin s property rights is strong and the Union s Section 7 rights less compelling I deem it unnecessary to decide whether reasonable alternative means of communication were available for the Union to reach Dolgin s employ ees CONCLUSION OF LAW Respondent has not engaged in any conduct violative of the Act [Recommended Order omitted from publication ]