Federated Department Stores, Inc. And Palm Coat Building

650 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Richway, a Division of Federated Department Stores, Inc. and Palm Coast Building and Con- struction Trades Council, AFL-CIO. Case 12- CA-10329 May 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND DEVANEY On April 2, 1984, Administrative Law Judge Marvin Roth issued the attached decision. The General Counsel and the Union filed exceptions and briefs, and the Respondent filed cross-excep- tions with brief in support, as well as a brief in sup- port of the judge's decision. The Union filed an an- swering brief to the cross-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 and to adopt the recommended Order as modified and explained below. 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 private proper- ty of the Respondent. We base our decision, how- ever, on the analysis set forth in Jean Country, 291 NLRB 11 (1988). On August 15, 1982,1 the Respondent opened two new retail department stores in the West Palm Beach, Florida area-one at Palm Beach Lakes Boulevard and the other at Military Trail (the Palm Beach Lakes store and the Military Trail store). At both locations the stores are situated on large, company-owned tracts of land that contain parking lots and access roadways leading to and from major thoroughfares. Each store is the sole occupant of its building, and the adjoining parking lots and roadways are for the use of the Respond- ent's customers.2 The general contractor for both stores was Vulcan Construction Company, a nonunion firm, and most of Vulcan's subcontractors were also nonunion. Prior to the stores' opening, the Union obtained information that the wages and benefits being paid by Vulcan and the subcontractors at the two store locations were substantially inferior to those of unionized firms in the area. The Union did ' All dates are in 1982 unless otherwise indicated. 2 Although the Military Trail store was the only operating facility on its tract of land at the time of the events in question, construction was already underway for a 31-store retail complex in which the Respondent had no property interest not consult the Respondent or any of the. nonunion contractors about this matter during construction. At 9 o'clock in the morning of August 15, "grand opening" day, the Union commenced a handbilling campaign at each store. The handbillers numbered in excess of 45 at each site and included nonemployee union officials, members, and their families. They stationed them- selves on sidewalks adjacent to the front entrances of the stores, in the parking lots, and along the access roadways. They distributed two handbills informing the public that the stores' construction contractors did not pay wages and benefits com- mensurate with the area standards and asking for a total consumer boycott of the Respondent until it openly promised to use labor contractors in the future who pay fair wages and benefits. The handbilling and the Respondent's reaction were essentially the same at both stores. Shortly after the handbilling began, officials of the Re- spondent notified the Union's handbillers at both sites that they were trespassing on private property and requested them to leave. The request was ac- companied by a threat to seek legal action. The Union made brief attempts at handbilling on public sites adjacent to primary entry points to the Re- spondent's property from major thoroughfares. Ac- cording to credited testimony, the handbillers could not effectively. handbill prospective custom- ers off the Respondent's premises because doing so either caused a traffic buildup on the main thor- oughfares or most cars were unable to stop in order to accept a handbill. Accordingly, the hand- billers persisted in handbilling on the Respondent's property until September 3, when the Union tem- porarily resolved a state court trespass injunction proceeding by ceasing the disputed activity and agreeing to give notice if it intended to resume. When the Union gave such notice on October 21, the Respondent sought and obtained a court decree enjoining the handbilling on the Respondent's property. Simultaneously with the handbilling, the Union rented four billboards, one of which was directly across the street from the Military Trail store. These billboards appealed to the public not to pa- tronize the Respondent and three other businesses. There is no evidence about efforts to conduct the Union's campaign at sites where the primary em- ployers were present. The judge held that the handbilling promoted a total consumer boycott of the Respondent's stores with an object of obtaining an agreement that the Respondent would build future stores with union labor. He determined that such an agreement was proscribed by Section 8(e), but that the truthful 294 NLRB No. 49 FEDERATED DEPARTMENT STORES handbilling was -nevertheless protected as a result of the' publicity proviso to Section 8(b)(4). Not- withstanding this protected status, and regardless of the lack of alternative means of communication at the Respondent's two stores, the judge conclud- ed that the Union had no right to enter the Re- spondent's property to publicize its dispute. In reaching this conclusion, the judge balanced the relative nature and strengths of the Union's Section 7 right and the Respondent's private property in- terest. He reasoned that because the Union's object was to secure an unlawful "hot cargo" agreement, the handbilling ranked "near the bottom of the spectrum"_ of protected union activities and was en- titled to.less weight than should be accorded the property interests of a neutral employer. He also stated that the General Counsel's failure to demon- strate that the Union could not have effectively en- gaged in primary economic activity against the nonunion general contractor and subcontractors further weakened the General Counsel's case and required the Section 7 right to yield to the proper- ty interests. Accordingly, he recommended dismis- sal of the complaint. The General Counsel and Union have excepted to the judge's conclusion that an object of the handbilling was to force the Respondent to enter into an agreement prohibited by Section 8(e) of the Act. They argue, instead, that the Union was en- gaged in lawful area standards handbilling . The Re- spondent's cross-exceptions contest, inter alia, the judge's finding that the Union's handbilling was protected. In affirming the judge's dismissal of the com- plaint, we find it unnecessary to consider these ex- ceptions. Instead, even assuming for the purpose of discussion that the Union's activity was protected handbilling for area standards and did not have an object of seeking an agreement proscribed by Sec- tion 8(e), the analysis set forth in our recent deci- sion in Jean Country supports the judge's conclu- sion that the Respondent did not violate the Act by forbidding the handbilling on its property. 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 & Wilcox3 and Hudgens.4 The Board concluded that the availability of reasonable alternative means of communication 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 3 NLRB Y Babcock & Wilcox Co , 351 U S 105 ( 1965) ° Hudgens v NLRB, 424 U S 507 (1976) 651 the availability of alternative means.5 The Board then stated (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. We proceed first to analyze the property right at issue here. Among the factors identified in Jean Country as relevant to assessing the relative strength or weakness of a property- right are the size and openness of the location as well as the use to which the property is put and the restrictions, if any, placed on public access to the property. In this case, each of the Respondent's two stores is a freestanding structure owned by the Respondent and situated by itself on its own parking lot provid- ed for its own customers. At all relevant times, nei- ther store shared its sidewalk, parking lot, or access roads with the customers of any other merchant. There is no evidence that the Respondent invited the public onto the premises of either of the two stores for any purpose other than to purchase goods from the stores. On the other hand, the Re- spondent's stores are retail operations generally open to the public without overt restriction.. Under these circumstances, we find that the Respondent was asserting a substantial private property interest when it prevented nonemployees from handbilling on its property. Turning next to the assessment of the Section 7 right, Jean Country listed the following factors, among others, as relevant: the nature of the right, the identity of the employer to which the right is directly related, the relationship of the employer or other target to the property to which access is sought, and the,-identity of the audience the union seeks to reach through the Section 7 activity. As previously stated, we have assumed without decid- ing that the Union here was engaged in area stand- ards activity, which is clearly a protected exercise 5 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, fn 7 Similarly, the General Coun- sel bears the burden on the alternative means factor to make "a clear showing, based on objective considerations, rather than subjective im- pressions, that reasonably effective alternative means were unavailable in the circumstances " Jean Country, at 13 652 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of Section 7 rights. See, e.g., Giant Food Markets, 241 NLRB 727, 728 (1979), enf. denied on other grounds 633 F.2d 18 (6th Cir. 1980). However, area standards handbilling is not on the stronger end of the spectrum of Section 7 rights, as is, for example, direct organizational solicitation or pri- mary strike action. As observed by the Supreme Court, the reason for assigning diminished weight to area standards activity is that it has "no .. . vital link to the employees located on the [primary] employer's property," but is protected "essentially because a union has a legitimate interest in protect- ing the wage standards of its members who are em- ployed by competitors of the [primary] employer." Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, 436 U.S. 180, 206 fn. 42 (1978). The weight assigned to area standards ac- tivity diminishes further where, as here, the Union's activity is secondary and the maintenance of construction industry employees' area standards has no apparent immediate potential to benefit even indirectly the retail store employees of the Re- spondent. The relative strength of the Union's Section 7 in- terests is also diluted in light of the relationship of the primary employer to the property to which access is sought. The Union here did not handbill at a site currently visited by the primary nonunion construction contractors with which it had an area standards dispute. Instead, it carried out its hand- billing at the Respondent's stores already complet- ed by those targeted employers. The General Counsel contends that, because area standards ac- tivity is protected, the Union necessarily had the right to handbill the Respondent's customers. The Board in Jean Country rejected this contention, however, by making clear that a union's own defi- nition of the audience it seeks is not necessarily controlling. Specifically, "a claim that the union's intended audience consists of the customers of every establishment that has even a remote connection to that target employer will not necessarily warrant access to any and all sites at which such customers may be found, even if access to private property might be necessary to reach the customers at one such site." 291 NLRB at 12. This is true here since the Union's intended audience was the clientele of a neutral employer that had no apparent ongoing connection with the primary employers. In sum, therefore, we find from our consideration of rele- vant factors that the Union's Section 7 right to engage in secondary area standards handbilling at the Respondent's stores ranks at the lower end of the spectrum of Section 7 rights. Considering, finally, the question of reasonable alternative means, the Board in Jean Country held that relevant factors may include, but are not limit- ed to, the desirability of avoiding the enmeshment of neutrals in labor disputes, the burden and ex- pense of nontrespassory communication alterna- tives, and the extent to which exclusive use of the nontrespassory alternatives would dilute the effec- tiveness of the message. 291 NLRB at 13. With re- spect to the first factor, we note that the Union's handbilling was carried out solely at. the property of the Respondent, a neutral employer, and urged a total boycott of its products. Nevertheless, the General Counsel argues that access to the Re- spondent's property must be allowed because the alternative of billboards, which the Union did at- tempt, was too expensive and limited in availabil- ity. Furthermore, the General Counsel contends that attempts to handbill on public property adja- cent to the Respondent's store locations were nei- ther safe nor effective. In short, the General Coun- sel argues that the Union had no reasonable alter- native means to convey its message. We agree with the judge's findings that, vis-a-vis the Respondent at the two store locations in dis- pute, no reasonable alternative means of communi- cation were available to the Union. However, ana- lyzing reasonable alternatives, as the judge noted, also requires an inquiry as to whether the Union could have effectively communicated elsewhere its protest against the primary nonunion employers. See Hardee's Food Systems, 294 NLRB 643; and Homart Development Co., 286 NLRB 714, 716 (1987). In the instant case, the General Counsel failed to demonstrate that the Union could not have effectively engaged in primary activity at the places of business of Vulcan and the nonunion sub- contractors or at ongoing construction projects in- volving those targeted employers, or even at the premises of secondary employers that have a cur- rent connection with the primary employer.e 6In considering the alternative -means factor, Member Johansen does not rely on the General Counsel's failure to show that the Union could not have engaged in primary activity as a substitute for handbilling cus- tomers of neutral Richway Stores. Member Johansen agrees with the judge that the General Counsel has demonstrated the Union's lack of rea- sonable alternative means to reach customers of Richway, but does not consider the General Counsel's meeting of this burden determinative in the final analysis Like his colleagues, in assessing the Union 's Sec. 7 in- terest, Member Johansen relies on the facts that Richway, the property owner, is not the employer with which the Union has its primary dispute and that the Union's intended audience was patrons of a neutral employer having no ongoing relationship with the primary. See Jean Country, at 13. In view of this minimal statutory interest, with due consideration to the alternative means factor, and in view of the substantial property interest asserted by the Respondent, Member Johansen concludes that the degree of impairment of the Sec. 7 right if access is denied is less than the degree of impairment of the property interest if access were granted Member Johansen notes that he did not participate in either Hardee's Food Systems or Homart Development and that he does not rely on either of those cases in the foregoing analysis. FEDERATED DEPARTMENT STORES 653 Accommodating the rights in conflict here pur- suant to our analysis in Jean Country, we conclude, in light of the absence of proof, that no reasonable alternative means existed for the Union to engage in area standards protests against the primary con- struction employers, that the degree of impairment to a relatively weak Section 7 right if access to the Respondent's property should be denied is less sub- stantial than the degree of impairment to the Re- spondent's property interest if access is granted. Accordingly, the Respondent did not violate Sec- tion 8(a)(1) of the Act by its efforts to preclude the Union's handbilling on its premises. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. Eduardo Soto, Esq., for the General Counsel. John F. Wymer III, Esq., of Atlanta, Georgia, for the Re- spondent. Howard Susskind, Esq., of Miami, Florida, for the Charg- ing Party. DECISION STATEMENT OF THE CASE MARVIN ROTH, Administrative Law Judge. This case was heard at Miami, Florida, on January 11, 1984. The charge and amended charge were filed on September 7 and 16, 1982,1 respectively, by Palm Coast Building and Construction Trades Council, AFL-CIO (Union). The complaint, which issued on August 30, 1983, and was amended on September 12, 1983, and at the hearing, al- leges that Richway, a Division of Federated Department Stores, Inc. (Company or Respondent) violated Section 8(a)(1) of the National Labor Relations Act. The grava- men of the complaint is that the Company allegedly pro- hibited the Union from engaging in lawful consumer-di- rected handbilling on the Company's property at its two West Palm Beach stores although the Union had no other effective alternative means of reaching the public. The Company's answer denies the commission of the al- leged unfair labor practices. All parties were afforded full opportunity to participate, to present relevant evi- dence, to argue orally, and to file briefs. The General Counsel, the Union, and the Company each filed a brief. On the entire record in this case and from my observa- tion of the demeanor of the witnesses , and having con- sidered the briefs and arguments of the parties, I make the following FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Company, a Delaware corporation, is engaged in the operation of retail department stores, including stores ' All dates herein are for 1982 unless otherwise indicated. located at 1760 Palm Beach Lakes Boulevard and 1941 South Military Trail in West Palm Beach, Florida (the Palm Beach Lakes and Military Trail stores) and collec- tively the West Palm Beach stores). In the operation of its business, the Company annually derives gross reve- nues in excess of $500,000 and annually purchases and re- ceives at its West Palm Beach stores products, goods, and materials valued in excess of $5000 directly from points outside of Florida. I find, as the Company admits, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The Company, an Atlanta-based firm, opened its West Palm Beach stores for business at 9 a.m. on August 15, 1982, with a "grand opening." They were the Company's first stores in Florida. Vulcan Corporation Company, a nonunion firm, was general contractor for the construc- tion of both stores. So far as indicated by the present record, all of Vulcan's subcontractors were also non- union. The General Counsel presented uncontradicted evidence that prior to August 15, the Union and its affili- ated local trade unions obtained information which indi- cated that the wage scales and fringe benefits paid by Vulcan and several of its subcontractors were substan- tially below or inferior to these of unionized firms in the West Palm Beach area. The Union did not communicate with the Company about the matter before commencing its handbilling on August 15, and the evidence fails to in- dicate that the Union communicated with the nonunion contractors at any time. On August 15 at 9 a.m., concurrently with the Compa- ny's grand opening, the Union commenced distribution of handbills at the West Palm Beach stores . There were 50 to 85 handbillers at the Palm Beach Lakes store and some 45 to 50 at the Military Trail store. The handbillers were union officials, officials of affiliated unions, union members, and their families, none of whom were em- ployees of the Company. There was no picketing, and the handbilling did not result in any work stoppages. The Union used two forms of handbill. The first read as fol- lows (emphasis added): PLEASE DON'T SHOP AT RICHWAY STORES The working men and women and retirees of the Palm Coast Building & Construction Trades Coun- cil, AFL-CIO, is requesting that you not shop at RICHWAY as a gesture of protest of the manner in which RICHWAY is contributing to our country's economic problems. RICHWAY has built its store on these premises by using contractors who pay substandard wages and promote lower working conditions. This saps 654 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the economic health and vitality of this community. The payment of substandard wages to any group of employees hired under substandard working condi- tions undercuts thewage standards and purchasing power of our working members-your neighbors and citizens of this community . The men and women and retirees of the Palm Coast Building & Construction Trades Council could not continue to live in this community and support their families at the wages and fringe benefits paid by the contractor selected by RICHWAY. Moreover, by using sub- standard labor contractors, RICHWAY undermines the local builders who hire skilled union workers at a fair wage. We request that you do not patronize RICHWA r'S until it openly and publicly promises that its future stores will be built by fair labor contractors who hire employees at fair wages and fringe benefits. If RICHWAY is unwilling to cut their prices, THEN REFUSE TO BUY THEIR MERCHAN- DISE. Instead do business with companies which use contractors who do not pay their employees cut-rate wages. You, the public, must express your protest against cut-rate wages. Otherwise this disease will spread to you-and you-and you! If you must enter RICHWAY to do business, please express your concerns to the manager sup- porting our objectives of fair wages and working conditions. Palm Coast Building & Construction Trades Council We are appealing only to the public-the con- sumer. We are not seeking to induce any person to cease work or to refuse to make deliveries. PLEASE DO NOT LITTER The second handbill read as follows: PLEASE DON'T SHOP AT RICHWAY STORES The working men and women and retirees of Local 323, I.B.E.W. urge you not to shop at RICH- WAY stores because of the builder's contribution to substandard wages. RICHWAY stores under construction are being built by contractors who pay substandard wages and fringe benefits. The use of substandard labor contractors is a drain on our local economy. The payment of substandard wages diminishes the pur- chasing power of working persons who are also customers and neighbors in this community. Our members cannot maintain their living standards at the substandard wages paid by the contractors at RICHWAY stores. Moreover, the use of cut-rate labor contractors undermines the business of fair labor contractors who build with skilled labor under union standards. Cut-rate wages are not fair unless the merchan- dise at RICHWAY'S is also cut-rate ! With so many shopping centers in the area , why not purchase your merchandise at one built by contractors using the best labor and materials? We ask you to support our protest against sub- standard wages and working conditions by refusing to buy any merchandise at the RICHWAY stores until the company is willing to slash the prices on all merchandise. 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 deliveries. PLEASE DO NOT LITTER Union President Roger Hudspeth , who was in charge of the handbilling at Military Trail, and IBEW Local 323 Business Agent George Hudspeth, who was in charge of the handbilling at Palm Beach Lakes , testified in sum that the above italicized third paragraph of the first handbill reflected the object of the handbilling. In Roger Hudspeth's words, "we would want to accomplish the fact that future stores would be built with fair wages and fair fringes for the people that was building them." Com- pany Board Chairman John Weitnauer testified without contradiction that on August 15 he asked Roger Hud- speth why the Union was handbilling, and that Hudspeth answered that "in effect, that they want a guarantee from us that we would be building with union labor in the future." I credit Weitnauer, and I find that the Union equated fair wages and fair fringes with union labor. Ac- cording to Weitnauer, he said that the Company could not make such a commitment, because as a matter of policy the Company let its architects select the builders. However, Weitnauer did not claim that the Company lacked the power or authority to select its own contrac- tors, nor did Weitnauer claim that the Company had no intention of engaging in future construction work in Palm Beach County. George and Roger Hudspeth testified concerning Palm Beach Lakes and Military Trail , respectively, that as of August 15 the stores were substantially completed, but that some construction work remained. Specifically, they testified that the inside electrical work and outside light- ing were not completed, and that the sprinkler system was not completed at Military Trail. Board Chairman Weitnauer, Palm Beach Lakes Store Manager Peter Kar- antonis, and Military Trail Store Manager Jeffrey Klos- terman testified in sum that construction work was com- pleted by August 15. They pointed out that if the electri- cal system was not complete , the stores would not be able to register sales on their computers. The Company witnesses' reasoning is persuasive. Additionally, it is un- likely that the stores could remain open at night if there were no exterior lighting . I credit the company wit- nesses, and I find that construction work was completed by August 15. The Palm Beach Lakes store is located on a tract of land immediately south of Palm Beach Lakes Boulevard, FEDERATED DEPARTMENT STORES an eight-lane thoroughfare. The Boulevard intersects with Interstate Highway 95 about 1000 yards to the west and with Congress Avenue about 500 yards to the east. The store faces north and is located about 100 yards south of the boulevard. A four-lane roadway, located on company property, connects the boulevard with parking areas in front of the store . Palm Beach Mall, a shopping center, is located north of the boulevard, across from the company premises. The premises are bounded on the south by a canal and a golf course, on the east (separated by more parking areas) by a drive-in bank and a restau- rant, and on the west by a Ramada Inn. There is no roadway connecting Congress Avenue with the Compa- ny's store. There are entrances on the west side which lead to the Company's garden shop and auto service fa- cility. Nearly all the Company's customers come by car, and most enter and exit by way of the Boulevard. There is a sidewalk adjacent to the front entrance of the store and another sidewalk adjacent to the boulevard. A gov- ernmental traffic survey introduced in evidence by the General Counsel, indicates an average daily traffic flow on Palm Beach Lakes Boulevard of 28,835 vehicles im- mediately west of Congress Avenue and 44,847 vehicles immediately east of Interstate 95. At Palm Beach Lakes the Union began handbilling on the sidewalk adjacent to the store , on parking lot islands north of the store, and in the open area east of the store. George Hudspeth testified that about 9:20 a .m., Manager Karantonis asked that they move away from the side- walk adjacent to the store. Hudspeth further testified that the handbillers then moved away from the store, continued to handbill in the parking lot, and also hand- billed on the public sidewalk adjacent to the access road from the boulevard. Hudspeth testified that about 30 minutes later Karantonis, this time accompanied by a city policeman, asked him to return to the sidewalk adjacent to the store because the officer determined that they were impeding traffic, in that drivers stopping to get handbills were causing a backup on the boulevard. Hud- speth testified that they returned, but that 5 minutes later Karantonis, a policeman, and a third person told them that they had to leave the Company's premises because they were trespassing. Hudspeth refused, asserting that they had a legal right to handbill on the Company's premises, that they could not effectively convey their message on the public sidewalk because of hedges which prevented their being seen from the store premises, that the officer told them they were obstructing traffic there, and that they had already accommodated the Company by moving several times . At this point Karantonis handed Hudspeth the following typewritten note: . As you know, you are on private property and as such are trespassing. While you are free to carry on your handbiiling [sic] on public property, your doing so on Richway property is illegal. You have already been asked twice to confine your activity to public property, but you have refused. Consider this our last request that you leave Richway property immediately. We have notified the proper authorities of your illegal trespassing and, if you fail to leave Richway property immediately, law enforcement 655 authorities will take the necessary action to enforce this request. Peter Karantonis Store Manager Manager Karantonis, the only other witness concerning the events at Palm Beach Lakes, gave a different version. Karantonis testified that shortly after 9 'a.m. he told Hud- speth that the handbillers should leave the Company's premises. Karantonis further testified that they left the sidewalk adjacent to the store, but remained in the park- ing area, which was company property. Thereafter Kar- antonis gave Hudspeth the typewritten note and Hud- speth refused to leave. Karantonis testified that the Union never attempted to handbill on the public side- walk. I credit Hudspeth. Karantonis' brief narrative fails to answer certain pertinent questions . Karantonis failed to explain how he could be certain that the Union did not handbill on the public sidewalk, in light of Hud- speth's assertion that hedges blocked any view from the store premises. Karantonis also failed either to explain or deny the presence of police officers and the unidentified third person with him. As will be discussed, testimony with respect to Military Trail indicates that the Compa- ny formulated and announced its policy in connection with the handbilling at that location , about 10 a.m. It is possible that Karantonis was not aware of the Compa- ny's policy until that time, and therefore attempted to make some accommodation with the Union. Additional- ly, other evidence adduced in connection with Military Trail tends to corroborate George Hudspeth's testimony concerning a traffic backup. The Military Trail store is located on a tract of land southwest of the intersection of Forest Hill Boulevard (on the north), and Military Trail (on the east), the latter a six-lane thoroughfare (the evidence fails to indicate the width of Forest Hill Boulevard). The Company's store is located at the western end of the tract, facing eastward, with an adjacent sidewalk. There is a large, company- owned parking area in the center of the tract. At the time of the handbilling, the Company's store was the only functioning business on this tract . However, con- struction of other retail establishments was underway even then, all on land that was sold by the Company to another firm (Olympia and York) prior to August 15. Specifically, along the south end of the tract, space has been alloted for some 31 stores. At the east end of the tract, adjacent to Military Trail, are a bank and a restau- rant which were completed after the handbilling. The Company does not own, operate, or control any other business on the tract. There is, and was as of August 15, a four-lane access road which runs from Military Road in a westerly direction, between the bank and the restau- rant, across the parking area and up to the Company's store front entrance. There is also a two-lane access road running from the store to Forest Hill Boulevard, a dis- tance of about one-quarter mile. The Company does not own any land along this access road . There is a K-Mart store on one side of the access road and undeveloped land on the other side. There is no access to the Compa- ny's store from the south or west. Nearly all the Compa- 656 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ny's customers come by automobile . Approximately 90- percent enter and leave via Military Trail . The traffic survey previously mentioned indicates that in this area, Military Trail has an average daily traffic flow of 32,285 vehicles. At the Military Trail store, the Union commenced handbilling on the sidewalk adjacent to the store, and in the parking lot along the access road to Military Trail. Roger Hudspeth testified that about 10 a.m., the "store manager and the Southeast district manager" came up and asked him to take a telephone call inside the store. (In light of the testimony of Board Chairman Weitnauer, I find that the "district manager" was actually Weit- nauer.) The caller identified himself as the Company's at- torney, asked why the Union was handbilling, and told Hudspeth that they were trespassing . Thereafter Weit- nauer directed Hudspeth to move the handbilling away from the store and off the Company's premises. Weit- nauer specifically directed Hudspeth to move the hand- billing to an area along the Military Trail access road at the eastern edge of the Company's premises , adjacent to the present site of the bank and restaurant , and to an- other area along the Forest Hill Boulevard access road about 200 feet north of the Company's store . Hudspeth testified that they moved the handbilling accordingly, but that after about 2 hours they concluded that such handbilling was ineffective. 'Hudspeth testified that traffic moved rapidly along the Forest Hill access road, that few cars stopped to take handbills, and that those who did blocked traffic because it was only a two-lane road. Hudspeth's testimony with regard to the Military Trail access road was something less than a model of clarity. Hudspeth initially testified that with respect to both access roads, that 1 in 10 cars would not stop to take handbills. However, Hudspeth testified with respect to the Military Trail road, that some 20 to 25 of 150 to 200 cars stopped for handbills. In the overall context of Hud- speth's testimony, I find that he meant to say that 1 in 10 cars did stop to take a handbill. Hudspeth testified that there was a backup of cars on the Military Trail access road. However, on the basis of his testimony it is diffi- cult to tell whether this backup was caused by the hand- billing or by the heavy flow of traffic that day, or what is more likely, by a combination of both factors . Thereaf- ter the handbillers returned to the sidewalk in front of the Company's store. Hudspeth testified that another complicating factor was the extremely hot weather, which meant that most cars had their windows closed for air conditioning. It may reasonably be inferred that the same condition would prevail at Palm Beach Lakes. Evidence was adduced concerning alternative means by which the Union could or did publicize its position. George and Roger Hudspeth testified in sum that news- papers and television stations would accept some union commercials, but would not accept ads that called for a consumer boycott. The Union used commercial bill- boards to convey its message calling for a boycott of the Company and three other named businesses (including the Ramada Inn adjacent to the Palm Beach Lakes store) because they allegedly lowered area standards by paying substandard wages and benefits. (There was no mention of contractors.) The Union used four billboards, includ- ing one near the Military Trail store, but there was no billboard available near the Palm Beach Lakes store. Only one outdoor advertiser agreed to accept the boy- cott signs. Normally the advertising firms required that billboards be posted for fixed periods of 6 months or a year. However the Union was able to prevail on the one firm which accepted the ads, to use its billboards for a 3- month period at a cost of $13,000, which was shared by the Union and its affiliated locals. The handbilling continued until September 3. In the meantime, the Company petitioned a state court to enjoin the handbilling. After an unsuccessful attempt by the Union and other defendants to transfer the proceed- ing to a Federal court, the defendants agreed to cease handbilling and to give notice if they intended to resume handbilling. On October .21, the Union gave notice of such intention. On November 22, the state court issued a preliminary order enjoining the defendants from hand- billing on the Company's premises or "on public proper- ty contiguous to [the Company's] retail facility in such a manner as to impede the free ingress and egress of the public and vehicular traffic to and from [the Company's] property so as to create a safety hazard." The court pre- mised its order in part on a fording that the Board decid- ed that the defendants had no right under the Act to handbill on the Company's property (referring to the Re- gional Director's initial refusal to proceed on the present charge). However after the General Counsel reversed the Regional Director's decision and directed issuance of a complaint, the state court denied the defendant's motion to dissolve the injunction. The court held, on the authority of Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, 436 U.S. 180 (1978), that the injunction "would remain in effect until the [Board] rules that the unions may lawfully trespass on [the Com- pany's] property to publicize its labor dispute with [the Company]." The present charge alleges that the Compa- ny violated Section 8(a)(1) by attempting to remove the handbilling "through police officers and judicial means." However the complaint does not allege, nor does the General Counsel contend, that the Company violated the Act by seeking an injunction. B. Analysis and Concluding Findings This case presents, in essence, three issues: (1) Apart from the fact that the handbilling took place on private property, did the handbilling constitute activity protect- ed under Section 7 of the Act? (2) did the Union have any other effective means of conveying its message to prospective customers of the Company?, (3) if the answer to the first question is "Yes" and to the second question "No," did the Union have a statutorily protect- ed right to handbill on the company premises? For the reasons discussed, I find that the answers to the first and second questions are "Yes" and "No " respectively, but that the unlawful object of the handbilling , as distin- guished from the lawful means used to obtain that object, precludes the finding of a violation in this case. The first issue requires consideration of the Union's ul- timate object. As discussed, I find that the Union's object was to obtain an agreement that in the future, the Com- FEDERATED DEPARTMENT STORES pany would build its stores with union labor. Indeed, the Union so- informed the Company. Therefore, at least an object of the handbilling was to obtain a hot cargo agreement proscribed by Section 8(e) of the Act. Colum- bus Building Trades Council (Kroger Ca), 164 NLRB 516, 522 (1967); see also Connell Construction Co. v. Plumbers Local 100, 421 U.S. 616, 633 (1975); Colorado Building Trades Council (Utilities Services), 239 NLRB 253 (1978). If the Union had engaged in picketing or strike action to obtain such an agreement, then such conduct would have violated Section 8(b)(4)(A) of the Act. Therefore, I also reject the General Counsel's argument (Br. 8) that the Union simply engaged in "area standards" handbilling. However, the second or "publicity" proviso to Section 8(b)(4), exempts from its proscription (including conduct otherwise violative of Section 8(b)(4)(A)), certain hand- billing and other publicity. Specifically, the proviso states: ... That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picket- ing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are pro- duced by an employer with whom the labor organi- zation has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual em- ployed by any person other than the primary em- ployer 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 ... . Therefore, the question is presented of whether the handbilling was exempted from the proscription of Sec- tion 8(b)(4)(A) by reason of the publicity proviso and, if so, whether the handbilling was protected activity under Section 7 of the Act. First, I find that the handbilling was protected by the publicity proviso. That proviso has been construed liberally in order to effectuate a "pro- found concern," reflected by the legislative history of the Landrum-Griffin amendments to the Act, "that the union's freedom to appeal to the public for support of their case be adequately safeguarded." NLRB v. Servette, Inc., 377 U.S. 46, 55 (1964). In the present case, the Union was concerned because the Company used non- union contractors and subcontractors whose wage scales and fringe benefits were inferior to those of organized firms in the West Palm Beach area. Although the two West Palm Beach stores were completed, and the Com- pany had no immediate plans for further construction, the Union wanted some assurance from the Company that future construction work would be performed by union labor. Therefore, the Union had a "primary dis- pute" with those nonunion contractors and subcontrac- tors (presently unidentified), who might in the future perform construction work for the Company. See Na- tional Woodwork Mfrs Assn. v. NLRB, 386 U.S. 612, 634- 657 635 (1967).2 As Servette makes clear, the proviso terms "product," "products" and "produced" should be broad- ly construed to include employers who provide services. Similarly, the term "distributed by another employer" should also be broadly construed to effectuate the con- gressional intent. Therefore the proviso is applicable to handbilling which informs the public that an employer utilizes the services of construction firms whom a union regards as unfair. Edward J. DeBartolo Corp., 463 U.S. 147 (1983). This brings me to the question of the truthfulness of the handbills. I find on consideration of the text of the handbills, and statements made by the Union and its rep- resentatives in connection with the handbilling, that the Union truthfully advised the public of the nature of its dispute, as required by the proviso. The first handbill clearly conveyed the nature of the Union's grievance and the relief which it sought. Thus, the Union asserted that "Richway has built its store on these premises by using contractors who pay substandard wages and promote lower working conditions." As found, the General Coun- sel adduced uncontroverted evidence that the wages and fringe benefits paid by Vulcan were substantially inferior to those of union contractors in the area. Therefore the Union had an objective basis for expressing its opinion. The Union further stated the relief which it sought, namely, that: "We request that you do not patronize Richway's until it openly promises that its future stores will be built by fair labor contractors who hire employ- ees at fair wages and fringe benefits." The Union did not state that it was insisting that the Company use only union labor. However the Union equated union condi- tions with "fair labor contractors." Therefore the hand- bills cannot be regarded as untruthful in this regard. The Union did not name the contractors used by the Compa- ny. However, as the Union was seeking an agreement covering future work, this omission was immaterial. Moreover, in both handbills the Union made clear that the contractors, and not the Company itself, performed the work. Therefore the handbills were factually accu- rate in this regard. Florida Gulf Coast Building Trades Council (DeBartolo Corp.), 252 NLRB 702 fn. 2 (1980), 2 In National Woodwork, the Supreme Court held in sum that Sec. 8(e), which "closely tracks" the language of the secondary boycott provision of the Act, was designed to close a "loophole" in that provision by pro- hibiting agreements to engage in secondary boycotts. In other words, a hot-cargo agreement is simply another form of secondary boycott, in which the signatory or proposed signatory is the secondary or neutral employer, and the Union's primary dispute is with the class of employers with whom the signatory would be required to "cease or refrain" (in the language of Sec 8(e)) from doing business . Therefore, the fact that the Company did not have any current business relationship with any non- union contractor or subcontractor at the time of the handbilling did not preclude the existence of a "primary dispute" within the meaning of the proviso. It is also immaterial that the Union did not communicate with Vulcan or the nonunion subcontractors in connection with the construc- tion of the West Palm Beach stores A union may take direct action in the form of a strike, picketing, or boycott (unless specifically proscribed by the Act), without communicating with the alleged unfair employer, and the absence of such communication does not preclude the existence of a labor dispute. See NLRB Y. Washington Aluminum Ca, 370 U.S. 9, 14 (1962). 658 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD revd. on other grounds 463 U.S. 147 (1983).$ The second handbill was technically inaccurate in that it asserted, in the present tense, that "Richway stores under construc- tion are being built" by substandard contractors. Howev- er, the Company had just completed building its West Palm Beach stores with alleged substandard contractors, the Company never gave assurance, and indeed refused to assure the Union that it would refrain from using such contractors, but the Union was seeking such assurance. Therefore, the handbill did not mislead the public as to the nature of the Union's dispute. The second handbill also requested that the public "support our protest against substandard wages and working conditions by re- fusing to buy any merchandise at Richway Stores until the Company is willing to slash the prices on all mer- chandise." However this appeal was ancillary to the Union's argument, spelled out in the first handbill, that the Company was unjustly profiting by building its stores under substandard working conditions. Therefore the appeal was relevant to the Union's dispute.4 For the foregoing reasons, I find that the handbilling was protected by the publicity proviso to Section 8(b)(4)(B). I further fmd that the handbilling (apart from question of its location) also constituted protected activi- ty under Section 7 of the Act . The handbilling was union and concerted activity in furtherance of the Union's object to protect the wages, working conditions, and job opportunities of employees represented by its affiliated local unions, by obtaining an agreement from the Com- pany to use union labor for future construction work. To that end, the Union sought to inform the public of the merits of its dispute, and to enlist their support. The Union utilized lawful means, specifically handbilling per- mitted under the publicity proviso to Section 8 (b)(4), to ® In DeBartolo, the Supreme Court reversed the Board insofar as the Board found that the respondent union did not violate the Act by distrib- uting handbills calling for a total boycott of a shopping center , notwith- standing that only one store in the center had used the services of the alleged substandard contractors (not named in the handbills). That issue is not presented in the instant case . In all other respects the Board's deci- sion, which was affirmed by the Fourth Circuit Court of Appeals, re- mains valid law. 4 Military Trail Store Manager Klosterman testified without contradic- tion that on one occasion he overheard Roger Hudspeth tell a prospec- tive customer that "Richway claims to be a discount store, but if you check with K-Mart, you will find that their prices are much cheaper." Klosterman told Hudspeth that he could not do that, whereupon Hud- speth replied, "I'm finally starting to get to you guys, aren 't I?" Kloster- man also testified without contradiction that on another occasion, an un- identified handbiller told him that "I have several men in a station wagon that will blow you away if you give me any trouble." I find that Hud- speth's statement was irrelevant to the Union's labor dispute , and that neither statement was protected by the publicity proviso . However, these isolated incidents did not convert otherwise protected handbilling into unlawful or unprotected activity . Indeed, Hospital Employees (Delta Air Lines), 263 NLRB 996 (1982), principally relied on by the Company (Br. 20-22) so indicates In Delta the Board found that the respondent union, acting in furtherance of a primary dispute with a janitorial firm, violated Sec. 8(bX4)(B) by distributing four types of handbills at Delta 's facilities, two of which falsely indicated that the Union 's dispute was with Delta. The other two identified the nature of the primary dispute , but contained assertions containing Delta's safety and consumer record which were to- tally irrelevant to that dispute . The Board dealt individually with each of the handbills, and at no point did the Board suggest that the illegal nature of one handbill would taint the others. Therefore, the Union's billboards, which failed to indicate that the Company was using contractors, also did not render the handbilling unlawful. achieve its goals. Therefore the Union's handbilling was also protected by Section 7. See Giant Food Markets, 241 NLRB 727, 728 (1979), revd. and remanded on other grounds 633 F.2d 18 (6th Cir. 1980).5 Nevertheless, I find in the circumstances of this case that the Union did not have a statutorily protected right to enter onto the Company's property to publicize its dispute. Unlike the cases principally relied on by General Counsel (Montgomery Ward & Co., 265 NLRB 60 (1982), and Giant Food Markets, supra),° the present case in- volves union conduct for an unlawful object, albeit by lawful means. If the Union were successful in its ultimate object, then the end result might well be unlawful , i.e., a hot-cargo agreement proscribed by Section 8(e) of the Act. I find it incongruous that the Board would grant the Union the extraordinary remedy of access to private property, for the purpose of applying pressure on the Company in order to obtain an object which might well be unlawful. In Montgomery Ward, which involved "con- sumer handbilling in support of a primary labor dis- pute'17 the Board found it unnecessary to weigh the rela- tive nature and strength of various forms of Section 7 ac- tivities, e.g., consumer-directed boycott picketing, area standards picketing, organizational activity and primary economic activity. However the Board did not say that it would never do so . Indeed, in Hudgens v. NLRB, 424 U.S. 507 (1976), the Supreme Court indicated that such evaluation might be warranted . In Hudgens, the Court held: The Babcock & Wilcox opinions established the basic objective under the Act: accommodation of § 7 rights and private property rights with as little destruction of one as is consistent with the mainte- nance of the other. The locus of that accommoda- tion, however, may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context . [Emphasis added.] The Section 7 rights here involved, i.e., consumer hand- billing which calls for a total boycott of a neutral em- ployer, in order to obtain an agreement which itself might be unlawful, plainly falls near the bottom of the spectrum. Conversely, when making the accommodation the property rights of a neutral employer should be ac- corded greater weight than those of the employer with whom the Union has its primary dispute, particularly when the Union seeks a total boycott of the employer's business. 6 Giant Foods involved lawful area standards picketing, whereas the present case involves lawful handbilling. However, the Board 's rationale in Giant Foods is equally applicable to the present case. a See also Seattle First National Bank, 243 NLRB 898 (1979), aft in pertinent part 651 F.2d 1272 (9th Cir. 1980), cited by the Board in Mont- gomery Ward. 7 In Montgomery Ward, the charging union, in furtherance of a lawful primary strike against Buddys, entered onto Montgomery Ward 's prem- ises for the purpose of distributing handbills which requested customers to refrain from buying Buddys' products sold in Montgomery Ward's store. 8 NLRB Y. Babcock & Wilcox Ca, 351 U.S 105 (1956). FEDERATED DEPARTMENT STORES As indicated, evidence was adduced concerning the Union's ability to communicate its boycott appeal to pro- spective customers of the Company without entering onto the Company's property. I agree with General Counsel that the Union did not have any reasonable al- ternative means to convey that message. Indeed, Mont- gomery Ward is virtually controlling authority in this regard. At Palm Beach Lakes, the credited testimony of George Hudspeth indicates that when the Union at- tempted to handbill on the public sidewalk adjacent to the Company's premises, the handbilling caused a backup of traffic on the boulevard, and the store manager and a police officer so informed Hudspeth. Under these cir- cumstances, the Union might well risk being held in con- tempt of the state court injunction even if it sought to handbill on public property adjacent to the Company's premises. Therefore, it is evident that the Company could not effectively handbill prospective customers off the Company's premises.9 At Military Trail, the situation was worse, because the Company's premises were sepa- rated from Military Trail by other private property. On August 15, the Company asked the Union to handbill at adjacent undeveloped private property. Even here, the Union was not able to handbill effectively, because most cars did not stop, and those that did caused a traffic backup. See Montgomery Ward, 265 NLRB at 61 (con- curring opinion of Chairman Van de Water). Since that time, the adjacent property between the Company's premises and Military Road has been developed . There- fore, even this location would no longer be available.10 The evidence further indicates that the Union did not have any other effective means of communicating its boycott appeal to prospective customers of the Compa- ny. The use of advertising media is not an effective sub- stitute for consumer handbilling at the employer's prem- ises. Montgomery Ward, 265 NLRB at 68. Moreover in the present case, the Union was substantially unable to use such media because the newspapers, television sta- tions, and all but one outdoor advertising firm were un- willing to accept boycott ads. The Company was unable to obtain any billboard in the vicinity of the Palm Beach Lakes store. The high cost of billboards, coupled with the inability of motorists to obtain more than a quick glance at the message, forced the Union and its affiliated locals to pool their resources, combine the Union's appeal with appeals relating to other disputes, and cap- sulize its message in such a way as to fail to adequately or accurately inform the public of the nature of its dis- 9 At the hearing, I rejected the Company's proffer of evidence that the Union handbilled the Ramada Inn (adjacent to the Company's premises), on public property. I adhere to that ruling. The handbilling at Ramada Inn involved a different dispute, possibly with a different priority from the Union's standpoint, and a different traffic pattern . The traffic flow in and out of a motel or hotel cannot be equated with that entering or leav- ing a large department store. Assuming that the Union could effectively handbill the Ramada Inn (and I make that assumption for purposes of this case), that would not denigrate from the proven fact that the handbilling at the entrance to the Company's premises resulted in a traffic backup. 10 The complaint alleges a continuing violation , and the Company con- tinues to exclude the Union from its premises . Therefore, I may properly take into consideration developments since August 15. 659 pute. Moreover, the use of billboards would be self-de- feating, in light of the advertising firm's requirement that billboards be leased for long periods of time. Thus, if the Company were to agree to the Union's demands, or reach an accommodation with the Union , then the Union would in effect be stuck with an appeal to the public to boycott a firm with which the Union had an agreement. The General Counsel did not adduce evidence wheth- er the Union could effectively engage in strike, picket- ing, or other boycott activity against Vulcan or other nonunion building contractors and subcontractors at oth- erlocations. I recognize that Montgomery Ward (265 NLRB at fn. 20) holds in the context of that case that such an inquiry is irrelevant . However, in Montgomery Ward, unlike the present case, the handbilling union simply followed the primary employer's products, and requested prospective customers not to purchase those products. In the present case, the Union requested a total boycott of the neutral employer, at a time when non- union contractors and subcontractors with whom the Union actually had its dispute were not even engaged at work on the Company's premises. In these circum- stances, it is appropriate to consider whether the Union could adequately inform the public of its real dispute (with the nonunion contractors) by conventional primary methods, rather than by enlarging the area of dispute by seeking to enmesh the entire business of a neutral em- ployer. I find that General Counsel's failure to demon- strate that the Union could not effectively utilize such primary methods, further tends to detract from the strength of General Counsel's case, and to support reso- lution in favor of the Company's property rights.11 CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 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. The Union did not have a statutory right to handbill on the Company's premises in the circumstances of this case. 4. The Company did not violate Section 8(a)(1) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed12 ORDER The complaint is dismissed. " If I had found a violation in this case, I would nevertheless deny the Union's request that the Company be ordered to withdraw its state court lawsuit. The General Counsel declined to proceed on the Union's allega- tion that the Company unlawfully maintained that action, and its legality was not litigated in this case . Therefore, the Union 's request goes beyond the scope of the present proceeding. 's 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.