Hardee'S Food Systems, Inc.

642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Hardee's Food Systems, Inc. and Laborers Local Union No. 204, Laborers' International Union of North America, AFL-CIO. Case 25-CA- 16331 May 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS HIGGINS AND DEVANEY On March 29, 1985, Administrative Law Judge Stephen J. Gross issued the attached decision. The General Counsel and the Respondent filed excep- tions and supporting briefs, and the Charging Party filed cross-exceptions and a brief supporting its cross-exceptions and answering the Respondent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions as modified and explained below, and to adopt the recommended Order. We agree with the judge that the Respondent did not violate Section 8(a)(1) of the Act by deny- ing the Union access to handbill on the Respond- ent's private property. We base our decision, how- ever, on the analysis set forth in Jean Country, 291 NLRB 11 (1988). Hardee's Food Systems, Inc. (the Respondent) operates restaurants, including one in Brazil, Indi- ana, and three in Terre Haute, Indiana. The Re- spondent engaged Perry Building Contractors (Perry) as a general contractor for extensive work on its Brazil restaurant. Charles Toth, a union field representative, questioned three workers on the job about their pay and concluded from the responses that Perry was not paying area standard wages. The Union picketed and then handbilled at the Brazil restaurant,2 advising of the substandard wages. On January 27, 1984,3 representatives of the Union, the Respondent, and Perry met to discuss the situation. Although Perry claimed to be paying prevailing wage rates, the Respondent admitted it did not have enough money budgeted for the ' The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) To the extent that the Respondent has excepted to some of the judge's credibility findings, we have carefully examined the record and find no basis for reversing the findings 2 The Brazil restaurant remained open during the construction work and the Union handbilled customers entering the restaurant s All subsequent dates refer to 1984 unless otherwise specified Brazil work to be done at the prevailing wage rates. 1. c - The Union ceased handbilling while it awaited proof that Perry was paying area standard wages. Perry did not contact the Union, and the Union re- sumed handbilling on February 4 at the Brazil site and also began handbilling at the three restaurants in Terre Haute, 15 miles from Brazil. The handbills prepared for the Terre Haute restaurants, designat- ed by the Respondent as restaurants "number 1," "number 2," and "number 3," advised that the Re- spondent's contractor at the Brazil restaurant was paying substandard wages and requested people not to patronize the handbilled restaurant. The hand- billing, which was done by union employees, caused no disruption. A few minutes after handbilling began outside restaurant number 1, the restaurant' s assistant man- ager told the union employee to leave the 'premises. The handbiller refused to leave, the assistant man- ager warned that he would call the police, the handbiller persisted in his refusal, and the assistant manager called the police. When the handbiller re- fused to leave the premises at police request, the police arrested him. Toth arrived at the restaurant during the arrest and informed the police that union employees were handbilling at, restaurant numbers 2 and 3. At restaurant number 2, an assist- ant manager ordered the handbiller to leave and called the police when the handbiller refused. Al- though it is not clear if the police arrived at restau- rant number 2 in response to the Respondent's tele- phone call or Toth's statement at restaurant number 1, the handbiller subsequently was arrested. The police arrived at restaurant number 3, without request from the Respondent, and arrested the handbiller when he refused to leave. The assistant manager spoke with his supervisor by telephone during the arrest and received his supervisor's per- mission to allow the police to remove the hand- biller. The Respondent did not prefer charges against the handbillers, and the handbillers were not prosecuted. Handbilling resumed at the three restaurants on February 5 without interference by the Respondent. The judge found that the handbills were truthful and that the handbilling was covered by the public- ity proviso of Section 8(b)(4)(ii) of the Act. The judge found that both the Section 7 right and the property right were weak and he concluded that the proper accommodation of the two depended on "the extent to which alternative means of commu- nication were available to Local 204." In discussing alternative means, the judge held that the General Counsel must prove that using the mass media would not be an effective alternative means. 294 NLRB No. 48 HARDEE'S FOOD SYSTEMS Noting the lack of evidence on the feasibility of using the mass media, the judge held he could not find the handbilling was protected by the Act, and he dismissed the complaint.4 The judge's decision issued before the Board de- cided Jean Country, above, which provides a framework to analyze when a union has the right under Section 7 to handbill on private property. The Board's concern in trying to accommodate the Section 7 right with the property right is "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 ." Id. at 13 . The Board always considers the existence of reasonable alter- native means of communication 'and the way in which those alternative means, or lack thereof, affect the strength of the rights to be balanced. We agree with the judge that the Union's Sec- tion 7 right, without reference to the impact of al- ternative means, is relatively weak . The Union's area standards dispute is not with the Respondent, but with the Respondent 's general contractor, and the dispute is located in a city 15 miles from the handbilling sites. And, although the dispute is with Perry, the Union does not represent or seek to rep- resent Perry employees. We also agree with the judge that the Respond- ent's property right is not compelling.5 Each of the three restaurants is a free-standing building, and they are located on large parking lots used by other businesses . Automobile drivers gain access to the parking lots by one of several driveway entries that connect the parking lots to the city streets sur- rounding them . There are no barriers between the Respondent's parts of the parking lots and the por- tions near other businesses . Patrons can park near one business and enter another . Customers do not necessarily enter or exit the parking lot by the driveway nearest the business they are patronizing. The Terre Haute population treated the parking lots as public property . Finally, the handbilling, al- though done on the Respondent's property, was in all other respects nonintrusive. Accordingly, we 4 The judge found it unnecessary to resolve issues he perceived arose because the handbillers were not employees of the Respondent or Perry Although nonemployees of the Respondent and Perry , the handbillers' activity is still protected See Fabric Services, 190 NLRB 540, 541-542 ( 1971) The employee/nonemployee distinction relates to the strength of the Union 's asserted Sec 7 right See Hudgens v NLRB , 424 U S 507, 521 fn 10 (1976) 5It is clear, however, that the Respondent met the initial burden set forth in Jean Country, 291 NLRB II at 12 fn 7 ( 1988), of showing that it possessed a property interest giving it control of the Terre Haute prem- ises from which the handbillers were removed As the judge found, the Respondent owned the three Terre Haute restaurants and was the sole lessor of the part of the parking lots that surrounded each of the restau- rants 643 conclude the Respondent's private property rights are relatively weak. With respect to the availability of alternative means of communication, it is immaterial whether, as the judge found,, handbilling from the public sidewalks near the driveways at the Terre Haute facilities was a reasonable alternative.6 When, as in the present case, a union has both a primary target and secondary targets at numerous locations, a lack of reasonable means of communication will not necessarily be found simply on a showing that such means are not available at all of the properties in question. Instead, we must examine whether the Union had a reasonable means of communicating its protest to customers of establishments doing business with the primary employer . The Board in Jean Country , above, made it clear that a union's own definition of the audience it seeks to address is not necessarily controlling : "a claim that the union's intended audience consists of customers of every establishment that has even a remote connec- tion to [the primary] target employer will not nec- essarily warrant access to any and all sites at which such customers may be found , even if access to pri- vate property might be necessary to reach custom- ers at one such site." Id. at 12. Accord : Homart De- velopment Co., 286 NLRB 714 (1987). Thus, the issue is whether it was necessary for the Union to gain access to the Respondent's pri- vate property in Terre Haute in order to engage in its Section 7 activity ultimately directed at the pri- mary employer, the construction company working on the Respondent's private property in Brazil. The Union had access to the property on which the construction company was doing the remodel- ing work, and the remodeled facility remained open so the Union could (and did) convey its mes- sage to the Respondent's customers at that facility. Under these circumstances , we find that access to the Brazil property afforded the Union reasonable means of exercising Section 7 rights on behalf of employees whose wage standards the construction company allegedly was undermining. It is clear that the Union's pressure against the Respondent is stronger if it can handbill at numer- ous locations . However, the Jean Country accom- modation analysis is based largely on NLRB v. Babcock & Wilcox Co.,7 which acknowledges the 6 We do not agree, however, with the judge 's finding that the com- plaint must be dismissed because the record does not permit a finding that the Union could not reasonably have used the mass media The Board has noted specifically that "it will be the exceptional case where the use of newspapers, radio , and television will be feasible alternatives to direct contact " Jean Country, above at 12 This case is not one of the rare exceptions in which use of the mass media must be disproved as an alternative means ' 351 U S 105 (1956) 644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD need for reasonable means of communication, not the most effective means. Id. at 112. Requiring that access be granted to numerous properties owned by a secondary employer, regardless of their con- nection to the activities of the primary employer, is not a reasonable accommodation of the conflicting rights. We do not hold that the General Counsel would never be able to make a showing that there are no reasonable means of exercising the Section 7 right absent access to a secondary employer's prop- erties beyond those connected with the primary employer. However, there is no such showing here. • Accommodating the rights in conflict here pur- suant to our analysis in Jean Country, we conclude, in light of the showing that the Union had a rea- sonable means to engage in its protected activity, that the degree of impairment to the Section 7 right if access to the Respondent's Terre Haute properties should be denied is less substantial than the degree of impairment to the Respondent's property right if access is granted. Accordingly, the Respondent did not violate Section 8(a)(1) of the Act by its exclusion of the Union's agents from its property. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. John W. Gray, Esq., for the General Counsel. David M. Vaughn, Esq., of Atlanta, Georgia, for the Re- spondent. Edward Fillenwarth Jr., Esq. (Fillenwarth, Dennerline, Grath & Baird), of Indianapolis, Indiana, for the Charging Party DECISION Introduction STEPHEN J. GROSS, Administrative Law Judge. The Respondent, Hardee's Food Systems, Inc, owns and op- erates numerous Hardee's restaurants throughout the United States. i As of February 1984 the Respondent owned three Hardee's restaurants in Terre Haute, Indiana. On Febru- ary 4 three members of the Charging Party, Laborers Local Union No 204 (Local 204 or the Union) stationed themselves next to entrances to the three Hardee's res- taurants in Terre Haute and began passing out handbills that urged consumers not to patronize the restaurants. ' All parties agree that the Respondent is an employer engaged in com- merce within the meaning of the National Labor Relations Act, (the Act) and that the Charging Party is a labor organization within the meaning of the Act According to the General Counsel, the Respondent thereupon "caused the arrest" of the handbillers, in' vio- lation of Section 8(a)(1) of the Act.2 The Respondent denies that it caused the handbillers' arrests and claims that, in any event, the handbilling was not entitled to the protection of the Act.3 The Origin of the Dispute Brazil, Indiana, is about 15 miles from Terre Haute. The Respondent owns a restaurant in Brazil . In January 1984 the Respondent began extensive construction work on the restaurant using D.G. Perry Building Contractors, Inc. as its general contractor. Charles Toth is one of Local 204's "field representatives." Toth noticed the construction work and questioned three of the workers on the job about their pay. One-a teenager-said that "he thought he was making $4.50 an hour." Another said that "he was making scale," but did not know what "scale" was. A third refused to provide any information. At the time the Union's collective-bargaining contracts called for wages of $11.63 an hour, not including fringe benefits. - Toth concluded that the construction employees at the site of the Respondent's Brazil restaurant were earning less than prevailing wage rates. According to Toth, "I assumed that if, they didn't know what they were getting paid, they weren't getting paid very much." Based on Toth's information the Union began picket- ing the Respondent's Brazil restaurant, then ' stopped the picketing and began passing out handbills at the restau- rant advising of the construction workers' below-par wages. Neither the Union nor the General Counsel claims that the Respondent acted unlawfully in respect to the Brazil handbilling. Indeed, as Toth put it- We had no problem whatsoever with the customers, or the police, or the company. In fact, they used to offer the men coffee and sandwiches at dinner time. Representatives of the various parties in interest-con- struction unions, the Respondent, and the contractor- met on January 27. The Respondent's regional director of operations, Jack Hayman, was the Respondent's spokesman. A union representative voiced • his concern that the Respondent was using contractors that "weren't meeting prevailing wage rates." Perry (the owner of the general contractor for the Brazil work) denied the alle- gation, claiming that the pay and other benefits of the employees on the job were comparable to those called for by Local 204's collective-bargaining contracts. Hayman initially took the same position but later said that the Respondent did not "have the money budgeted" to pay for the Brazil work to be done at prevailing area wage rates. Hayman went on to urge the Union to stop the Brazil handbilling on the ground that the Respondent 2 Complaint, par 5(d) 3 The Union's charge was filed on April 2, 1984 The complaint issued on May 21, 1984 The hearing in the matter was held before me in Terre Haute on June 28, 1984 The General Counsel and the Respondent have filed briefs, and both of those parties have made unopposed motions to correct the transcript in various respects Those motions are hereby granted HARDEE'S FOOD SYSTEMS planned extensive construction work in Terre Haute and that the Respondent would do it "paying the employees prevailing wage rates." As of the close of the meeting Hayman was under the impression that while there were to be some further dis- cussions between union officials and Perry, the dispute had been resolved. But Local 204's representatives, who had asked for proof of Perry's claim about the construc- tion workers' pay, thought that the agreement was that the Union would "give them [the Respondent and its contractors] a few days to substantiate that they were paying some comparable to our wage package" at the Brazil site, and that the Union would stop its hand- billing in Brazil only for those few days unless Perry documented his claim. Local 204 did temporarily stop its handbilling. As it turned out, however, there was no further contact be- tween Perry and Local 204. The Union accordingly re- sumed its handbilling at the Respondent's Brazil restau- rant on February 4. No one claims that the Respondent behaved unlawfully in respect to the resumed handbilling at the Brazil restaurant. The Handbilling in Terre Haute Sometime between the end of the January 27 meeting and February 4 Local 204's officials decided that if Perry could not prove that the Brazil construction workers were receiving prevailing wage rates, the Union would expand the handbilling to Terre Haute. The reason for that decision: because of the expected construction in Terre Haute; and because the Union wanted to increase the pressure on the Respondent to have its Brazil con- tractor pay wages comparable to prevailing area levels The handbilling in Terre Haute began on the same day it resumed in Brazil-February 4. The Terre Haute handbills read: NOTICE TO THE PUBLIC The Central Wabash Valley Building and Con- struction Trades Council advises you that the re- modeling of the Brazil Hardee's restaurant . . is being performed by Perry Construction Company. This work is being performed principally through the use of non-union labor employed under sub- standard wage scales and working conditions. We believe that employment of non-union labor under such sub-standard wage scales and conditions affects all working men andwomen in this area by undermining already established benefits The Central Wabash Valley Building and Con- struction Trades Council believes you have the right to know these facts. You can voice your protest against Hardee's anti- worker policies by refusing to patronize this estab- lishment. Thanks for your support !! Central Wabash Valley Building and Construction Trades Council The Handbillers' Behavior 645 Three members of Local 204 were given the job of distributing handbills in Terre Haute-one person at each of the Hardee's restaurants. Each of the three stood about 6 to 8 feet from an entrance to the restaurant. At those locations the handbillers were well inside the pe- rimeters of the Respondent's property According to the undisputed evidence, each of the handbillers quietly and politely gave a handbill to each prospective Hardee's customer willing to take one. The handbilling caused no disruptions of any kind. None of the handbillers littered, prevented any deliveries or pickups, or caused any Har- dee's employee to refrain from carrying out or perform- ing any services.4 The Respondent's Response to the Handbilling Restaurant 1. As it happened, the first response of res- taurant personnel to the handbilling occurred at the res- taurant the Respondent designated restaurant 1. A few minutes after the arrival of the handbiller, one of the res- taurant's "assistant managers" came out of the restaurant to order the handbiller "to leave the premises."5 When the handbiller refused to move, the assistant manager warned that he was going to call the police. The hand- biller again refused to move, and the assistant manager did call the police. According to the testimony of the as- sistant manager's superior (who was not present at the occurrence), the police were asked only to move the handbiller "off the lot to the sidewalk." Upon their arriv- al the police demanded that the handbiller leave the Re- spondent's property. When the handbiller refused, the police arrested him. Restaurant 2. At restaurant 2, as at restaurant 1, an as- sistant manager ordered the handbiller to leave. When the handbiller refused, the assistant manager called the police (without notifying the handbiller that that was being done). The police arrived soon after the call. But it is not clear whether it was the assistant manager's call that brought them there: A union official present at the arrest of the handbiller at restaurant 1 had advised the police of the activities at restaurants 2 and 3, and the police did act on that information. In any case, the hand- biller was arrested after he refused to move off the Re- spondent's property Restaurant 3. No one associated with the Respondent asked the handbiller at restaurant 3 to leave, and there is no evidence that anyone associated with the Respondent asked the police to come to restaurant 3. Nonetheless the police did arrive at the restaurant-presumably as a result of the union official's remarks at restaurant 1 about the presence of handbillers at restaurants 2 and 3. The police once again asked the handbiller at restaurant 3 to ° The only evidence in any way to the contrary was hearsay testimony by a member of Respondent's management who said that he was told that Hardee's personnel at two of the restaurants received "a couple of customer complaints about people passing out handbills " Tr 155 5 The evidence does not show whether the assistant managers of Re- spondent's restaurants are supervisors or employees But the Respondent does not contend that the assistant managers are not its agents for present purposes 646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD move from the Respondent's property and arrested the handbiller when he refused. Just as the police made the arrest an assistant manager of the restaurant reached his supervisor by telephone and said that "the police had shown up there and that they had [the handbiller] in the [police] car and were ready to take him away." The assistant manager went on to ask "should they take him away?" The supervisor responded affirmatively.6 (The record is silent about whether the police had asked that question of the assistant manager or, if they had not, whether they nonetheless would have refrained from booking the handbiller if the supervisor had said that the handbiller should be released.) The Respondent did not prefer charges against the handbillers, and the charges were subsequently dismissed. The handbillers resumed their activity at the Terre Haute restaurants on February 5 and continued it for a month without any further interference by the Respond- ent. The Import of Respondent's Calls to the Police It is a violation of the Act for an employer to order employees off its property if the employees are engaged in protected activity and have the right to be on the property. E.g., Seattle-First National Bank, 243 NLRB 898 (1979). And it is clear that at restaurants 1 and 2 the Respondent did order the handbillers to leave. But the complaint does not allege that those demands were viola- tions of the Act. Rather, the complaint alleges only that the Respondent "caused the arrest" of the handbillers. Action by the Respondent did result in the handbillers' arrests at restaurant 1 and, perhaps, at restaurants 2 and 3. But it is not altogether clear that an employer's re- quest of police to remove persons engaged in protected activity from the Employer's property is, without more, a violation of the Act. (The Board generally looks for something more than a simple request for police action in order to conclude that a call to the police constitutes un- lawful interference, restraint, or coercion.)? This decision will nonetheless assume that if the hand- billers were engaged in protected activity, the Respond- ent's calls to the police would have constituted unlawful action. As discussed below, however, my recommenda- tion is that the Board conclude that there has been no showing that the handbillers' activity was protected. Did the Union Violate Section 8(b) Actions that violate Section 8(b) are not protected by the Act even if those actions would otherwise be pro- tected by Sections 7 and 8(a). H.R. Rep. No. 510, 80th Cong., 1st Sess. 39 (1947); see also Newspaper Production Co. v. NLRB, 503 F.2d 821, 826 (5th Cir. 1974); Team- sters Local 707 (Claremont Polychemical), 196 NLRB 613, 9 Tr 177-178 7 See Clear Lake Hospital, 223 NLRB I , 7-8 (1976), Payless, 162 NLRB 872 fn 1 (1967) The complaint alleges that the Respondent caused the "detention" of the handbillers as well as their arrest, and it is clear that the police did detain the handbillers (by jailing them) The General Counsel sought to show that the police treated the handbillers harshly But I sustained objections to the receipt of such evidence on the ground that the General Counsel did not contend that the Respondent sought to have the police treat the handbillers that way 628 (1972). Cf. Clear Pine Mouldings, 268 NLRB 1044 (1984). e . Under Section 8(b)(4)(ii)(B) it is an unfair labor prac- tice for a union or its agents "to threaten, coerce, or re- strain any person engaged in commerce . . . where .. . an object thereof is . . . forcing or requiring any person ... to cease doing business with any other person ... ." Local 204's purpose in handbilling outside the Hardee's restaurants in Terre Haute was to so coerce the Respondent. 11 That is not the end of the matter, however, since the scope of Section 8(b)(4)(ii)(B) is limited by a proviso that reads: nothing contained in [Section 8(b)(4)(ii)(B)] shall be construed to prohibit publicity, other than picket- ing, for the purpose of truthfully advising the public, including consumers . . . that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any in- dividual employed by any person other than the pri- mary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution. If the handbilling was covered by the proviso it was not prohibited by Section 8(b)(4)(ii)(B). But the Respondent argues that for two reasons the Terre Haute handbilling was not covered by the proviso: (1) the handbills were not "truthful"; and (2) the handbills did not involve any "product" that was "distributed" by the Respondent. The Handbilling and the Proviso to ection 8(b)(4)(ii)(B) The truthfulness of the handbills. The handbills stated that the construction work in Brazil was "performed through the use of . . . labor employed under sub-stand- ard wage scales and working conditions." The Respond- ent claims that the General Counsel had the burden of proving the accuracy of that statement. It is not clear that that is so. But assuming that the General Counsel did have that burden, my conclusion is that that burden was carried. The evidence shows that, according to one of the employees at the Brazil site, his wages were far below the wages received by employees covered by Local 204 contracts; that Perry failed to take advantage of an opportunity the Union gave it (after the January 27 meeting) to show that the employees involved in the construction work at the Brazil restaurant were receiving wages comparable to area standards; and that during the course of the January 27 meeting Hayman virtually ad- mitted that the Brazil construction workers were being paid less than prevailing wage rates. Finally, "the provi- so does not require that a handbiller be an insurer that the content of the handbill is 100 percent correct." 8 See Tr 140 and Florida Building Trades Council (DeBartolo Corp), 273 NLRB 1431 (1985), Electrical Workers IBEW Local 662 (Middle South Broadcasting), 133 NLRB 1698, 1705 (1961) HARDEE'S FOOD SYSTEMS Teamsters Local 537 (Lohman Sales), 132 NLRB 901, 906 (1961).9 Did Respondent "distribute" any product that was `pro- duced" by its construction contractors. On its face, the pro- viso to Section 8(b)(4)(ii)(B) applies only to "products" that are "produced" by the primary employer and "dis- tributed" by the secondary employer. Yet the only con- nection that the Respondent had with Perry was that Perry performed construction work at the Brazil restau- rant. Respondent contends that under the circumstances "it is incongruous to say that Perry was a producer of a `product or products' of Hardee's within the meaning of the proviso, merely because the remodeling construction work at Brazil may have inured to the benefit of that particular restaurant." i o The Respondent's major premise is accurate. the "produce" "distribute" language in the proviso does limit the proviso's scope Edward J. DeBartolo Corp. v. NLRB, 463 U.S. 147 (1983). However (1) for purposes of the proviso, a contractor's construction services are a "prod- uct" that is "distributed" by the employer for whom the contractor provided the services (Operating Engineers Local 139 (Oak Construction), 226 NLRB 759 (1976); Plumbers Local 142 (Piggly Wiggly), 133 NLRB 307 (1961)); and (2) the proviso covers the handbilling even though the handbilling occurred 15 miles from the site of the dispute since even where the relationship between the primary employer and secondary employer is one of construction contractor and user of the contractor's serv- ices, the proviso does not impose a geographical limita- tion on handbilling. Sheet Metal Workers Local 54 (Sakowitz, Inc.), 174 NLRB 362 (1969). In sum, the handbilling was covered by the proviso to Section 8(b)(4)(ii)(B) and accordingly did not violate Section 8(b) in any respect. That, however, does not end the inquiry into whether the handbilling merits the pro- tection accorded by Section 8(a) of the Act. One ques- tion in this respect stems from the fact that the hand- billers conducted the handbilling while on the Respond- ent's property. Accommodating the Section 7 Rights of the Handbillers and the Respondent's Private Property Rights It is "the task of the Board . . . to resolve conflicts be- tween Section 7 rights and private property rights, `and to seek a proper accommodation between the two."' Hudgens v. NLRB, 424 U.S. 507, 521 (1976) (quoting Central Hardware Co. v. NLRB, 407 U.S. 539, 543 (1972)). Given the facts here at issue there are four fac- tors to consider in arriving at the "proper accommoda- tion" that Hudgens demands of the Board: (1) the nature of the Section 7 rights involved; (2) the nature of the pri- vate property rights; (3) the degree to which the hand- billing intruded on private property rights; and (4) the 9 The Respondent argues that the Terre Haute handbills were decep- tive and inaccurate in their reference to "Hardee 's anti-worker policies" since the Union's only concern was with the wages paid by the Respond- ent's contractors , not by the Respondent itself But argument is not per- suasive The handbills make it clear that the Union's only dispute with the Respondent concerned the wages paid by Perry 10 Br at 19 647 extent to which alternative means of communication were available to Local 204. Each of those factors will be considered below. The Nature of the Section 7 Rights Involved It is reasonably clear that some kinds of Section 7 rights are entitled to greater weight when being balanced against the rights of owners of private property than are other types of Section 7 rights E.g., Hudgens v. NLRB, supra;'' NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 113 (1956). And given the appropriateness of gradations as between various kinds of Section 7 activities, it is evi- dent that the handbilling at issue here is entitled to rela- tively little weight. For one thing, the Union's dispute was with Perry, not (directly) with the Respondent. i 2 For another, the Union did not even have a direct connection with Perry-it did not represent Perry's employees and did not seek to.13 Thirdly, the persons who did the handbill- ing were not shown to be employees who were, or could be, affected even indirectly by the substandard wages of the construction employees at the Brazil site. (The com- plaint alleges, and the evidence shows, only that the handbillers were "representatives" of Local 204.)14 Fourthly, if geography ought to play any role in the weighing process, then the strength of the Union's right to handbill in Terre Haute is diminished by the 15 miles between Terre Haute and Brazil (assuming that the focus of the Union's concern was the Brazil construction work, as specified in the handbills). And finally, if the Union's real concern was the upcoming construction in Terre Haute, then the strength of the Union's case is dimin- ished by the fact that the handbills did not say so and because it was by no means clear that the Respondent planned to, pay less than area standards for the Terre Haute construction work-the Union found out about the not-yet-started construction, after all, in the course of a discussion in which the Respondent said that its Terre Haute contractors would pay wages meeting area stand- ards. The Degree to Which the Respondent Treated its Property as "Private" At the time of the picketing each of the Hardee's res- taurants in Terre Haute was located in its own free- standing building on a large parking lot used by several different establishments The neighbors of Hardee's res- 11 "The locus" of the accommodation between Sec 7 rights and pri- vate property rights "may fall at differing points along the spectrum de- pending on the nature and strength of the respective § 7 rights and pri- vate property rights asserted in any given context" 424 U S at 522 12 In Seattle-First National Bank, supra, the Board emphasized that the "union was engaged in primary, economic strike activity against the pri- mary employer" in holding that handbilling at the entrance of a restau- rant located on the 46th floor of a bank building was entitled to the Act's protection notwithstanding the handbillers ' intrusion onto the property of the owner of the building 13 See Sears, Roebuck & Co v San Diego District Council of Carpenters, 436 U S 180, 206 fn 42 (1978) 14 See Hudgens, supra, 424 U S at 522 (referring to the possible rel- evance of the fact that the Sec 7 activity at issue there was conducted by employees of the primary employer, rather than "by outsiders") 648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD taurant 1 were a beer retailer and a rental office. Har- dee's restaurant 2 was on the same lot as a Waffle House restaurant a boys' club, a union hall, and a pizza restau- rant. Hardee's restaurant, 3 shared a parking lot with an automobile tire store and a large shopping center. 1 5 The Respondent was the sole lessor of the part of the lot sur- rounding each of the three Hardee's restaurants But no wall or fence separated the Respondent's parts of the parking lots from the parts of the lots owned or leased by the other establishments. As one witness described the lot used by Hardee's restaurant 2 and its neighboring es- tablishments: "It's all blacktop, it looks like one huge parking lot. There's no curbs, or no barricades, or any- thing." 16 The record indicates that to at least some extent con- sumers and, indeed, the Terre Haute population at large, treated the parking lots on which the Hardee's restau- rants were situated, including that part of each lot leased by the Respondent, as public property. For example, boys' club users sometimes park on the part of the lot leased by Hardee's restaurant 2. And the users of any one of the establishments on any of the lots often enter or leave via the property of another of the establish- ments. The Intrusiveness of the Employees' Activity While the handbilling was done on the Respondent's property, in all other respects the activity was just about as nonintrusive as handbilling can get. There was only one handbiller at each of the restaurants, even though at restaurants 1 and 3 there were two entrances, and at all three restaurants the customers had the option of using drive-through service instead of entering of the restau- rant. The handbillers did not enter the Respondent's buildings; in fact they did not even stand immediately next to the buildings. And the handbillers' behavior was wholly nondisruptive. Did the Union Have Feasible Alternative Means of Communicating Handbilling from the perimeter of the Respondent's prop- erty. The General Counsel proved that Local 204 could not feasibly have passed out handbills from public prop- erty bordering the restaurants. As contended by the General Counsel, the weather, the layout of the parking lots, the routes customers use to get to the restaurants, the narrow width of the public land adjoining the park- ing lots, and the traffic on the streets next to the parking lots mean that perimeter handbilling would have been in- effective and unsafe, and would have presented "the like- lihood of . . . enmeshing neutral employers" in the dis- pute.17 Use of mass media. The record shows that Local 204's officials considered, but rejected, the use of mass media to publicize the Union's dispute with the Respondent. But apart from that, there is no evidence on whether the 15 Hand-drawn maps of the various parking lots are included in the record as G C Exhs 3, 4, and 5 16Tr Ill. 17 Giant Food Markets , 241 NLRB 727, 729 (1979) use of mass media by the Union would have been feasi- ble. Accommodating Section 7 Rights and the Respondent's Property Rights-Conclusion The Section 7 rights exercised by the Union were cer- tainly not the type that would justify access to private property if an effective alternative were available. On the other hand, the Respondent's property rights in re- spect to the land around its Terre Haute restaurants had been sufficiently diluted, and the alternative of perimeter handbilling was sufficiently unworkable, to lead to the conclusion that the Union had the right to conduct the handbilling-unless the use by the Union of mass media advertising was a reasonable alternative. One question that raises is whether the use of mass media advertising may under any circumstances be deemed a reasonable alternative to handbilling. The use of the mass media as an alternative to hand- billing was considered in Montgomery-Ward & Co., 265 NLRB 60 (1982). There the Board held that, as a matter of law, mass media should not be deemed to be a feasible alternative to handbilling.'$ In Montgomery-Ward, more- over, the private property on which the handbillers stood was less public-like than here; and the handbillers there intruded to a greater extent on the respondent's property (two handbillers were stationed at each en- trance). But the object of the Montgomery-Ward handbilling was very different from the Union's here. The hand- billers there were striking employees of a manufacturer whose goods were sold in the handbilled Montgomery- Ward store. The handbills referred to the strike against the manufacturer and asked that the public "do not buy [the manufacturer's] products sold at this store." And the Board focused on that object in concluding that the re- spondent's efforts to remove the handbillers from its property violated the Act even though there was no showing that the use of mass media would have been in- feasible. 19 In contrast, the handbills here asked consumers not to patronize the Respondent's restaurants because of a dis- pute with another employer (Perry) involving another restaurant 15 miles away. While the Union had been told that the Terre Haute restaurants were going to undergo construction work, the Union was not engaged in any dispute with the Respondent about that work. Nor did the Union have any dispute about anything being sold in those restaurants. Rather, the Union's purpose, as reflect- ed in the handbills' message, was to reduce the Respond- ent's business generally. In these circumstances there is 18 See 265 NLRB at 60, 68 The Fifth Circuit took that same position in Hudgens v NLRB, 501 F 2d 161, 168-169 (1974) But in view of the Supreme Court's subsequent reversal of the Fifth Circuit's decision, that position would not appear to have precedential value Is The rationale of Tree Fruits suggests that the handbilling in Mont- gomery- Ward was akin to the handbilling of a primary employer NLRB v Teamsters Local 760 (Tree Fruits), 377 U S 58 (1964) See the discus- sion of this point by Judge Anderson in Montgomery-Ward, 265 NLRB at 65-66 The Board's opinion in the Montgomery- Ward decision cites Tree Fruits and, in addition, relies on a case involving the handbilling of a pri- mary employer (Seattle-First, supra) HARDEE'S FOOD SYSTEMS no obvious basis for concluding that Local 204 could not feasibly have used the mass media as its means of com- municating its message. I accordingly conclude that the proper accommodation between the Section 7 rights here at issue and the Respondent's property rights cannot be determined absent consideration of the feasibility of the use by the Union of the mass media as an alternative to handbilling. The problem that remains is that the record contains no evidence on whether the use of the mass media would have been a reasonable alternative for the Union. And that brings up the question of who had the burden of proof on this issue. It is clear that in cases of "trespassory organizational solicitation by nonemployees . . . . the union has the burden of showing that no other 'reasonable means of communicating . . . exists . . " Sears, Roebuck, supra, 436 U.S. at 405. And in Plymouth Park Shopping Center, 266 NLRB 481 (1983), which involved issues similar to those at hand here, the Board seems to have reached a similar conclusion. That case, like this one, involved an allegation that an employer unlawfully prevented a union from handbilling on the employer's premises. In Plym- outh Park, however, the Respondent did not file an answer and the case accordingly was decided on the basis of the complaint and the General Counsel's Motion for Summary Judgment. The Board granted the motion, but one member dissented (Member Hunter). According to the dissent, the General Counsel "failed to include in his complaint allegations a vital element of his prima facie case; i e, that the Union had no reasona- ble alternatives for communicating its message."20 The majority, in response, did not dispute that proof of lack of alternatives is part of the General Counsel 's prima facie case. Rather, the majority took the position that- Since Respondent has not filed an answer to the complaint or to the Notice To Show Cause, it is therefore deemed to have admitted that it engaged in the foregoing conduct and that its conduct was unlawful. In these circumstances, we must assume that no reasonable alternatives existed for communi- cation of the Union's message and that an accom- modation between employee rights and Respond- ent's property rights required Respondent to permit the subject handbilling.2 i 20 266 NLRB at 483 21 Id at 482, fn 1 The Board has since held that all elements of a prima facie case must be pleaded in a complaint in order to permit sum- mary judgment, even where no answer is filed Stine Scovil Construction Co, 269 NLRB 465 (1984) 649 In sum, Plymouth Park appears to stand for the propo- sition that, in a case like the one at hand, the General Counsel must prove lack of alternative means of commu- nication unless the respondent admits wrongdoing.22 Since the Respondent here not only denied wrongdoing but specifically raised the issue of mass media advertising as an alternative means of communication, my conclusion is that the General Counsel had the burden of proof on the issue. And since the record does not permit a finding that Local 204 could notreasonably have used the mass media, I cannot conclude that the handbilling was pro- tected by the Act. I will accordingly recommend that the complaint be dismissed. Other Issues Even had the record shown that the intrusion onto the Respondent's property was justified, it is not entirely clear that the evidence would have made out a violation of Section 8(a)(1). The issue that remains stems from the fact that the handbillers were not shown to have been "employees," within the meaning of the Act (except, possibly, as employees of the Union), and because the evidence gives no indication that any employee ever learned of the arrests. The question thus raised is wheth- er employees are interfered with, coerced, or restrained in the exercise of their rights if representatives of their union are arrested while engaged in handbilling on behalf of the employee members of the union, but the employ- ees gain no knowledge of those arrests and the arrests do not prevent the Union from completing the planned handbilling. 23 In view of the dismissal of the complaint on another ground, however, the issue need not be re- solved here. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed24 ORDER The complaint is dismissed in its entirety. 22 The complaint here alleges that "the Union had no reasonable alter- natives for communicating its message to customers of the Respondent " 23 In several comparable cases the Board specifically referred to the presence of employees E g, Montgomery Ward, supra, Seattle-First, supra, Giant Food Markets, supra On the other hand, there is language in those cases and in Plymouth Park Shopping Center, supra, that can be read to suggest that employee knowledge or involvement is unnecessary The conclusions of law in Plymouth Park, Seattle-First, and Giant Food make no reference to "employees " 24 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