Sentry Markets, Inc.

40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Sentry Markets, Inc. and Local P-40, United Food and Commercial Workers Union . Case 30-CA- 9679 August 10, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On June 24, 1988, Administrative Law Judge John H. West issued the attached decision. The Re- spondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a brief in support of the cross-exceptions and an an- swering brief. The Respondent also filed an an- swering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions, as modified, and to adopt the recom- mended Order as modified. The judge found that the Respondent violated Section 8(a)(1) of the Act by prohibiting the Union from handbilling at the storefront sidewalk near the Respondent's customer doors. We agree with the judge for the reasons set forth below. The pertinent facts, as stipulated by the parties and established by the testimony at the hearing, are as follows. The Respondent, a retail food store in West Allis, Wisconsin, leases property in an open strip shopping center that has nine other stores. The Respondent is one of the two largest stores in the shopping center. A storefront sidewalk runs the entire length of the shopping center, and there is a shared common parking lot. Rodger Scott, a vice president of the Respondent's parent corporation, Godfrey Company, testified that the Respondent is responsible for maintaining the entire parking lot and, as part of its responsibility, has posted signs in the portion of the parking lot directly in front of the Sentry store indicating that the lot is for the use of shopping center customers only.I According to Scott, the Respondent bills the other tenants for their portions of the maintenance expenses in- curred. Scott further testified that the Respondent considers the sidewalk in front of its store to be part of its property. i The signs state "I HOUR PARKING FOR SHOPPING CENTER CUSTOMERS ONLY UNAUTHORIZED VEHICLES WILL BE TICKETED AND TOWED AWAY AT OWNER'S EXPENSE ..." and "CUSTOMER PARKING ONLY' VIOLATORS WILL BE TICKETED BY POLICE." There are three entrances to the shopping center. One of the entrances is via West National Avenue, a six-lane road that has two travel lanes and one curb lane on each side of the median, and a posted speed limit of 35 miles per hour. West National Avenue has a separate lane for eastbound traffic turning left into the shopping center, and the por- tion of the curb lane near the shopping center en- trance is used as an acceleration/deceleration lane. The entrance itself has one lane for cars entering the shopping center and two lanes for cars exiting the shopping center; additionally, there is a stop sign at the exit. Customers can also enter the shop- ping center via entrances at Cleveland Avenue and Highway 100, which have lane configurations and posted speed limits similar to West National Avenue. Adjacent to the shopping center's parking lot is a public sidewalk that extends along the shop- ping center's perimeter; it is about 250 feet from the front of the Respondent's store to that portion of the public sidewalk adjacent to West National Avenue. The Union represents production and mainte- nance employees of Patrick Cudahy, Inc., which produces and markets pork products at its plant about 10 miles from the Respondent's store. In Jan- uary 19872 the Union commenced a strike against Cudahy, contending that it was protesting Cu- dahy's unfair labor practices. In support of this strike, on July 31 at 8 a.m., three striking Cudahy employees engaged in consumer handbilling at the Sentry store, which sells certain Cudahy products.3 The strikers stood on the storefront sidewalk near the Respondent's two customer doors and distribut- ed a two-sided handbill. One side of the handbill described the nature of the Union's dispute with Cudahy; asked customers not to purchase Cudahy products; and stated that the Union did not have a dispute with the Respondent and, therefore, was not asking customers to boycott the store, but to boycott only certain products. The other side of the handbill listed the products made by Cudahy and indicated that all Cudahy products are marked "U.S.D.A. EST. 28." The judge found that the strikers engaged the Respondent's customers in conversation regarding the nature of the dispute. The judge further found that the strikers did not interfere with customer ingress or egress or with deliveries to the store. Further, there is no evi- 2 All subsequent dates are in 1987 unless stated otherwise 8 Cudahy products sold at the Sentry store include bacon, two sizes of canned hams, and "hamdingers " The parties stipulated that the only rela- tionship between Cudahy and the Respondent is that of vendor/- purchaser. Additionally, the parties stipulated that there is no contractual, bargain- ing, or other relationship between the Union and the Respondent's em- ployees 296 NLRB No. 5 SENTRY MARKETS 41 dence that any of the Respondent's customers com- plained about the union handbilling. At approximately 10 a.m. that day , representa- tives of the Respondent advised the strikers of a corporate policy against handbilling on the prem- ises and asked them to leave , but the strikers re- fused to do so. Thereafter, the Respondent called the police, who threatened the strikers with arrest if they did not leave the premises . The strikers then moved to the public property at the West National Avenue entrance to the shopping center, where they stayed for the remainder of the day.4 In addi- tion to handbilling, the strikers carried signs at the perimeter that stated "Please don 't buy any Patrick Cudahy products." The Respondent contended that it has a corpo- rate policy disallowing handbilling on the premises because of concerns about litter and safety , and be- cause handbilling is a nuisance to customers. Re- garding litter, the Respondent testified that fliers displaying advertised items are available to custom- ers inside the store and that customers bring direct mail advertisements containing coupons inside the store, much of which ends up in the cart or on the floor and must be picked up by employees. The Respondent also admitted that, despite a corporate policy against solicitation, the Salvation Army is permitted on its premises to solicit contributions during the Christmas holiday season. Striker Michael Whitford testified that when the strikers were handbilling near the Respondent's doors, they picked up discarded handbills and placed those handbills that could not be reused in garbage cans. Additionally, the Union contended that handbilling on public property at the shopping center entrance was not a reasonable alternative to face-to-face contact with customers near the Re- spondent's customer doors. Specifically, Whitford testified that while standing near the Respondent's doors from 8 to 11 a.m., he distributed between 50 and 75 handbills, but that while he was on public property from 11 a.m. to 5 p.m., he was able to dis- tribute only 6 handbills to cars entering and exiting the premises. In this regard , Whitford stated that it was easier to handbill cars exiting the shopping center because they were required to stop before turning onto West National Avenue, but that com- munication was difficult because all the cars gener- ally had their windows up. Moreover, Whitford testified that the strikers had prepared the signs be- cause they were aware from prior experience of 4 The parties stipulated that "except for the one instance of attempted handbilling alleged in the complaint and admitted in the answer , and pos- sibly one other instance, Local P-40 has not engaged in or attempted to engage in handbilling at the Sentry store " At the hearing , however, striker Michael Whitford testified that the Union intends to handbill at the Sentry store in the future. the difficulty of handbilling at public entrances to shopping centers, but that the signs could display only an abbreviated version of the Union's mes- sage. Finally, Whitford stated that, when standing at the West National Avenue entrance to the shop- ping center, he was unable to distinguish customers of the Respondent from those of the other stores, unless grocery bags were visible in cars leaving the parking lot. Additionally, Richard Kojis, city traffic and street lighting engineer, testified regarding the po- tential safety hazards caused by handbilling at each of the three entrances to the shopping center. Re- garding the West National Avenue entrance, Kojis testified that if a car entering the shopping center stopped to take a handbill , other cars headed west- bound past the entrance would face potential rear- end collisions; drivers of cars exiting the shopping center would have "sight distance problems" (i.e., temporarily stopped cars would partly block their view of the avenue); and cars turning left into the shopping center from an eastbound direction could block traffic and create the potential for a right- angle collision . According to Kojis, the potential risks are exacerbated by the heavy traffic on High- way 100 and West National Avenue which are, re- spectively, the first and third busiest streets in the city.5 On the other hand, the Respondent contended that there were reasonable, effective, and cost-effi- cient alternatives to handbilling by the Union. In this regard, John Verre, an account supervisor with the advertising firm that services the Re- spondent, testified that alternative methods of com- munication such as newspaper advertising , direct- mail campaigns, and hand delivery in neighbor- hoods would be more effective than handbilling near the Respondent's doors because such means would enable the Union to communicate with all Cudahy customers who live in the area, and not just those who shop at Sentry.6 The Respondent also asserted at the hearing that, if asked, it would have permitted the Union to handbill at the outer portion of its parking lot near the entrance. The judge analyzed the access issue involved here under Fairmont Hotel, 282 NLRB 139 (1986). Relying on the facts that the Sentry store is located in a strip shopping center that is open to the public and that the Respondent permits the Salvation 5 Kojis testified that in a 24-hour period, about 32,000 cars travel on Highway 100 and about 24,000 cars travel near the shopping center on West National Avenue . Traffic flow for Cleveland Avenue is between 10,000 and 12,000 cars in a 24-hour period 6 Ronald Henningsen, who is in charge of advertising for the Godfrey Company, testified that the Respondent has engaged in direct-mail cam- paigns, but that hand delivery in neighborhoods was not advisable be- cause of weather conditions and the community's concerns about crime 42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Army to solicit contributions in front of the store during the holiday season, the judge initially found that the Respondent's property right is weak. The judge further found that the Union's Section 7 right is not more compelling than the weak proper- ty right because the handbilling was at a location other than the primary situs of the Union's dispute. Finally, the judge found that there were no reason- able alternative means of communication because, inter alia, handbilling at the perimeter was ineffec- tive and unsafe, and the advertising techniques used by merchants would prevent direct contact be- tween the Union and its intended audience. Subsequent to the judge's decision, the Board issued Jean Country, 291 NLRB 11 (1988), in which it reevaluated the analytical approach for re- solving conflicts between Section 7 and private property rights set forth in Fairmont Hotel, above, and clarified that the availability of reasonable al- ternative means is a factor that must be considered in every access case where a legitimate property interest and a Section 7 right must be accommodat- ed. The Board further held that in all access cases its essential concern would be the degree of impair- ment of the Section 7 right if access should be denied as it balances against the degree of impair- ment of the private property right if access should be granted. The Board also set forth a number of sometimes interdependent factors relevant to assess- ing the weight of property rights, Section 7 rights, and alternative means of communication. The Board's recent access decision in Mountain Country Food Store, 292 NLRB 967 (1989), in- volved facts similar to those in the instant case. In Mountain Country Food Store, the union sought to handbill on private property owned or controlled by the respondents (including both strip shopping center and freestanding retail food stores) in order to publicize its primary dispute with a bottling company. Although recognizing that the respond- ent stores were essentially open to the public, the Board, relying on the facts that the respondents maintained and controlled the use of the parking lots used by their customers and did not permit use of their property by any outside group for charita- ble or commercial purposes, found that the proper- ty rights asserted were relatively substantial. Rely- ing on the Supreme Court's 1964 Tree Fruits deci- sion (NLRB v. Fruit Packers Local 760, 377 U.S. 58 (1964)), the Board further found that by engaging in "struck product" consumer handbilling, the union asserted a relatively strong Section 7 right. Regarding alternative means, the Board found, inter alia, that in view of the detailed nature of the union's message in which it sought to persuade po- tential customers not to purchase products bottled at a specific plant, the information could not be fully contained on a picket sign. In view of the ab- sence of alternative means, the Board concluded that the respondent's denial of access to the union violated the Act. Applying the Jean Country accommodation anal- ysis to the instant case, we initially find that the Respondent's conduct was based on a legitimate property interest because the Respondent has a leasehold interest in the store, storefront sidewalk, and parking lot. Further, the Respondent is respon- sible for maintaining the entire parking lot, and has posted signs controlling the use of a substantial portion of the lot that is directly in front of its store. Finally, the Respondent presented testimony that it considers the sidewalk in front of its store to be part of its property and no party contends that the storefront sidewalk is not controlled by the Re- spondent. See Sahara Tahoe Hotel, 292 NLRB 812 (1989). Regarding the factors relevant to assessing the weight of the Respondent's property right, we note that the Respondent is one of the largest tenants in a strip shopping center that is readily accessible to the public via three entrances from public streets. Although in this case, unlike in Mountain Country Food Store, there is some evidence that the Re- spondent permits its property to be used for chari- table purposes, the limited presence of the Salva- tion Army on the Respondent's premises during the holiday season does not significantly diminish the strength of the property right asserted. We there- fore find that the Respondent's property right is only slightly weaker than the property rights of the respondent retail food stores in Mountain Country Food Store, which the Board found to be relatively substantial. With respect to the Union's activities, we note that the Supreme Court in its 1964 Tree Fruits deci- sion, above, found that "struck product" consumer handbilling that is peaceful in nature is protected activity under Section 7 of the Act. Thus, we find that by handbilling in support of its primary dis- pute with Cudahy, the Union asserted a relatively strong Section 7 right. See Mountain Country Food Store, above at 968. In this regard, as found by the judge, there is no evidence that the Union inter- fered with customer ingress or egress or with de- liveries to the store. Rather, the handbilling was peaceful and the number of handbillers was reason- able.' We therefore find that the peaceful and un- Additionally, the Respondent's own in-store advertising techniques created the same potential for in -store accidents caused by litter as did the Union's conduct , and there is evidence that the Union either reused or disposed of handbills that were discovered on the ground SENTRY MARKETS 43 obstructive manner in which the Union handbilled does not diminish the strength of the Section 7 right. Under the circumstances, we find that the Union's Section 7 right is certainly worthy of pro- tection against substantial impairment. Regarding the Union's alternative means of com- municating its message to its intended audience, the Respondent's customers who purchase Cudahy products, we agree with the judge's finding that picketing and handbilling on public property near the West National Avenue entrance to the shop- ping center was not a reasonable alternative be- cause the General Counsel has shown that hand- billing at that location was ineffective and unsafe. Regarding effectiveness, striker Michael Whitford testified that in a 6-hour period he was able to dis- tribute only six handbills to cars entering and exit- ing the shopping center at the West National Avenue entrance, compared to the much greater number distributed at the customer doors . In addi- tion, because cars generally had their windows up, there was little opportunity for communication be- tween the strikers and potential purchasers of Cudahy products. Further, although it was easier to handbill persons leaving the shopping center be- cause they were required to stop before turning onto West National Avenue, we find that handbill- ing exiting cars was not an effective means of com- munication because , at that point, the Respondent's customers had already made their purchases and, therefore, the effectiveness of the Union's message urging a boycott of Cudahy products was substan- tially diluted. Additionally, we find that, in view of the detailed nature of the Union's message in which it tried to persuade potential customers not to pur- chase Cudahy products, the information could not be fully contained on the picket signs that were used to supplement handbilling on the public prop- erty. Mountain Country Food Store, above at 969. In this regard, although the Respondent does not sell any Cudahy products under other brand names, the Union wished to engage in direct contact with cus- tomers to inform them of which Cudahy products the Respondent sells, and to explain that all pork products marked "U.S.D.A. EST. 28" are made by Cudahy. Regarding safety, as city engineer Kojis testified, there is the potential for car collisions and "sight distance" impairment for drivers that would be cre- ated by handbilling on the public property. Con- tributing to the safety problem is the fact that a high volume of traffic travels on West National Avenue and Highway 100 near the shopping center. Further, in view of the fact that the Re- spondent wanted the strikers to move to public property, we agree with the judge that handbilling in a portion of the parking lot near the public en- trance was not a reasonable alternative , notwith- standing the Respondent's belated contention-first made at the hearing-that the Union should have considered this option as a means of communicat- ing its message. See W. S. Butterfield Theatres, 292 NLRB 30, 33 fn. 9 (1988). Additionally, regarding the Respondent's conten- tion that newspaper advertising, direct mail, and hand delivery in neighborhoods would all be more effective means of communicating than handbilling on private property because they would enable the Union to reach all potential consumers of Cudahy products in the area and not just those who shop at Sentry, we note initially that the Board in Jean Country, above at 13, stated that only in "excep- tional" cases will the use of the mass media , includ- ing newspapers, be feasible alternatives to direct contact. We find that the present case is not an ex- ceptional one. Further, we find that the alternatives suggested by the Respondent would not be reason- able alternatives here because they would move the Union's message too far in time and distance from the point of purchase. Moreover, with respect to hand delivery, the alternative proposed by the Re- spondent that is most comparable in cost to union handbilling, we find that the Respondent's own tes- timony about handbilling in neighborhoods not being effective for the store because of weather conditions and the community's concerns about crime indicates that hand delivery would not be a reasonable alternative for the Union. Accommodating the private property and Sec- tion 7 rights pursuant to our analysis in Jean Coun- try, we find that the Respondent's property interest would suffer some impairment if access were grant- ed to the Union . This impairment, however, would not be substantial in light of the unobtrusive manner in which the Union handbilled and the fact that the Respondent essentially opened up its prem- ises to the public. By contrast, in the absence of reasonable alternative means of communication, the Union's Section 7 right would be "severely im- paired-substantially `destroyed' within the mean- ing of Babcock & Wilcox-" without entry onto the Respondent's property. Jean Country, above at 16. Therefore, under the facts of this case, we agree with the judge that the Section 7 right outweighed the private property right , and that the Union was entitled to handbill at the storefront sidewalk near the Respondent's customer doors. Accordingly, we conclude that the Respondent's conduct on July 31, 1987, violated Section 8(a)(1) of the Act. 44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Sentry Markets, Inc., West Allis, Wis- consin, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 1. Substitute the following for paragraph 1. "1. Cease and desist from "(a) Prohibiting representatives of Local P-40, United Food and Commercial Workers Union, under threat of arrest, from distributing handbills at the storefront sidewalk near the customer doors at the Respondent's West Allis, Wisconsin store as part of protected concerted activity in informing the public of its dispute with the primary employ- er, Patrick Cudahy, Inc. "(b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT prohibit representatives of Local P-40, United Food and Commercial Workers Union, under threat of arrest, from distributing handbills at the storefront sidewalk near the cus- tomer doors at our West Allis, Wisconsin store as part of protected concerted activity in informing the public of its dispute with the primary employ- er, Patrick Cudahy, Inc. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. SENTRY MARKETS, INC. Paul Bosanac, Esq., for the General Counsel. David W. Croysdale and Robert M. Ling Jr., Esqs. (Mi- chael, Best & Friedrich), of Milwaukee, Wisconsin, for the Respondent. Kenneth R. Loebel, Esq. (Habush, Habush & Davis, S .C), of Milwaukee, Wisconsin, for the Charging Party. DECISION STATEMENT OF THE CASE JOHN H. WEST, Administrative Law Judge. On a charge filed July 23, 1987,1 by Local P-40, United Food and Commercial Workers Union (Union), a complaint was issued on October 29 alleging that Sentry Markets, Inc. (Sentry) violated Section 8(a)(1) of the National Labor Relations Act (Act), by causing striking employ- ees of Patrick Cudahy, Inc. (Cudahy) under threat of arrest to cease handbilling the public at the entrances to the involved Sentry store. The employees were asking the public not to buy Cudahy goods. In its answer, Sentry admits that the involved store manager, Timothy Mueller, requested the handbillers to conduct their hand- billing on nearby public sidewalks . Also, Sentry, as an af- firmative defense, takes the position that its right to pro- tection and use of its property under applicable Wiscon- sin law is more compelling and supersedes any rights the handbillers may have under the Act; that the handbillers had other reasonable .and available means of communica- tion by handbilling on the nearby public sidewalks; and that in addition to handbilling, the Union had other rea- sonable alternative means of communication to potential buyers of Cudahy products. A trial was held in Milwaukee, Wisconsin, on January 20, 1988. On the entire record in this case, including my observation of the demeanor of the witnesses and consid- eration of the briefs filed in the end of February 1988 by General Counsel, Sentry, and the Charging Party, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a corporation , has stores at various loca- tions in Wisconsin where it is engaged in the retail food business. The complaint alleges, the Respondent admits, and I find that at all times material Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and the Union has been a labor organization within the meaning of Sec- tion 2(5) of the Act. I All dates are in 1987 unless stated otherwise SENTRY MARKETS 45 II. THE ALLEGED UNFAIR LABOR PRACTICE A. The Facts The Union called a strike against Cudahy in January. Sentry's involvement stems solely from the fact that it sells certain of Cudahy's products. As noted above, only one of the Sentry stores is involved . It is located on West National Avenue, West Allis, Wisconsin, in an open shopping center with nine other stores.2 There is a sidewalk which runs the length of the shopping center and is located just in front of the stores. Beyond that there is a shared common parking lot which is restricted, as indicated by signs posted throughout the lot, to "SHOPPING CENTER CUSTOMERS ONLY."s Across the parking lot, about 250 feet from the front of the Sentry store, there is a public sidewalk and beyond that are public roads. There are three entrances to the shopping center. One entrance is off West National Avenue which is a six-lane road with a median and a left turn lane (for eastbound traffic) into this entrance. There are two driving lanes and a curb lane on both sides of the road. The curb lane is normally utilized as a parking lane and in the area of the involved entrance it is used as a deceleration or ac- celeration lane. The speed limit on the involved segment of West National Avenue is 35 miles per hour (mph). This entrance has one lane for entering the shopping center parking lot and two for exiting . The entrance itself also has a median . There is a 6-foot area between the curb and the street side of the 5-foot wide sidewalk. Richard Kojis, who is the traffic and street lighting engi- neer for the city of West Allis, testified that if someone standing on the public sidewalk stops a driver who is uti- lizing this entrance into the parking lot to give him or her a leaflet, most likely the rear end of the vehicle could extend a little bit out into the street ; that there would be potential for a rear-end collision; that the driv- ers of vehicles exiting from the West National Avenue entrance would have their "site distance" hampered by vehicles that are stopped coming into the shopping center at this entrance ; and that if vehicles attempting to make a left turn into this entrance have to stop because the vehicle in front of them stopped to accept a handbill they would be blocking the westbound lanes of West Na- tional Avenue and would create a potential for a right angle collision. There is another entrance on Cleveland Avenue. Kojis testified that the speed limit on this section of Cleveland Avenue is 35 mph; that there are two travel lanes and a curb lane on both sides of Cleveland Avenue which has a 4-foot wide median; that there is a 6-foot grass area from the curb to the street side of the 5-foot wide public sidewalk; and that the same potential traffic hazards would result at the Cleveland Avenue entrance as are 2 The setting is described by General Counsel as an "unenclosed store- front mall" and by Respondent as "a small strip shopping in West Allis" Sentry leases the involved facility 'The signs read "1 HOUR PARKING FOR SHOPPING CENTER CUSTOMERS ONLY UNAUTHORIZED VEHICLES WILL BE TICKETED AND TOWED AWAY AT OWNER'S EXPENSE . " and "CUSTOMER PARKING ONLY! VIOLATORS WILL BE TICKETED BY POLICE." R Exits I and 2. respectively described above for the National Avenue entrance but on Cleveland Avenue drivers would not have the benefit of a shadow left turn lane in the median and consequent- ly there would be a potential in both directions, east and west, for rear-end collisions. And finally there is another entrance on Highway 100 which runs north and south . Regarding Highway 100, Kojis testified that the speed limit is 40 mph; that it is a divided highway with a 24-foot wide median, similar to the median on West National Avenue; that there are three travel lanes on both sides of the highway; that there is a shadow left turn lane for about seven cars on the southbound side of Highway 100 at this entrance to the involved shopping center; that there are two lanes coming into this entrance and one lane going out because it is restricted to a right turn only at this exit ; and that there would be a potential for a rear-end collision in both directions if cars are stopped on the public sidewalk area. Regarding traffic volume, Kojis testified , speaking in terms of a 24-hour period , that 12,000 vehicles would travel westbound and 12,000 vehicles would travel east- bound on National Avenue; that roughly a total of 10,000 to 12,000 vehicles would travel in either direction on Cleveland Avenue; that the total vehicle count on Highway 100 is about 32,500 vehicles and about one half of these would travel north; that Highway 100 is the most heavily traveled street in the city and the involved section of National Avenue is the third most heavily traveled road in the city; and that if traffic were not stopped on the sidewalk area of the entrances of these two roads there would be less potential for hazard. On cross-examination Kojis testified that he was not aware of any complaints either to his office or to the police department regarding the handbilling at the in- volved entrance. Subsequently Rodger Scott, a senior vice president in charge of human resources and security with Sentry's parent Godfrey Company Corporation, which sets policy for the store, testified that he was never requested to allow handbillers to be able to use the 15 to 30 feet of the parking lot closest to these entrances in order to avoid traffic hazards; and that if he had been asked he would have allowed such activity and he would have had no objection because the handbills would be "going into their car, they would more than likely stay there, they will not find their way into the carts or into the parking lot or onto the [store] floor." Scott testified that it is corporate policy to ask anyone handbilling at, as here pertinent, a Sentry store to "please do their thing out on the public sidewalk ," and if some- one refuses that request, the local law enforcement agency is called; that while it is corporate policy to allow no solicitation at the stores he is aware that there are exceptions made by individual store managers; that he discovered that the manager of the involved store al- lowed Salvation Army bellringers to solicit at the store during the holiday season ; that handbilling is not allowed because (1) it is a nuisance to Sentry's customers, (2) there would be a problem with litter in that while "we place a barrel inside, hopefully all of them will be 46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD dumped into the barrel, but they are left in the shopping carts, could be on the floors, somebody could slip on them and . . . it could affect the appearance of the store."4 While Sentry does not use handbilling at its stores, Lusic testified that in some stores, including the one in- volved herein , approximately 50 pieces of paper with ad- vertised items are placed inside the store so that a cus- tomer may pick it up to get their copy of a coupon or find out what the week's sale items are. This paper even- tually is left in the cart or "winds up on the floor." Simi- larly, direct mail advertisements are brought into the store by customers and, as Lusic testified, "[m]ost often the customer leaves . . . [it] in the cart and our employ- ees have to take the newspaper , or the remaining piece, [apparently meaning after the coupon is cut out] and dis- pose of it." On July 31 three of Cudahy's striking employees hand- billed just outside the two doorways to the Sentry store on the sidewalk adjacent to the store .5 The handbilling 4 Regarding safety, Scott testified more specifically that "[s]omeone could step on those, especially ladies with high heels and could cause them to fall." Ronald Lusic, executive vice president for the Godfrey Company, echoed the litter , nuisance, and safety concerns, pointing out that litter could cause the wheels of a shopping cart to change direction when being pushed and product could be bounced off displays and shelves Also, he pointed out that the appearance of the store is one of the major reasons why people shop there Lusic testified that out of the approximately 24,010 items sold in the store , approximately 4 are Cudahy items. Some of Respondent's witnesses did not believe that Respondent sold Cudahy products at the involved store under any name or brand other than Cudahy One side of the handbill reads as follows ATTENTION-AN IMPORTANT MESSAGE TO THE SHOPPING PUBLIC PLEASE DO NOT BUY PRODUCTS MADE BY THE PATRICK CUDAHY COMPANY The Reason. The employees of the Patrick Cudahy Company of Cudahy, Wis- consin have been forced to strike . These members of Local P-40 of the United Food and Commercial Workers Union have received de- mands by the company to accept wage cuts of up to $3.00 per hour, in addition to other concessions! What You Can Do- Your support is needed on behalf of the employees of Cudahy Please take a stand against the unreasonable and unfair demands of this company. How: Watch for, alert those you know, and please do not buy Patrick Cudahy Products and additional products produced at the Patrick Cudahy Plant They are identified by the U S D A Inspection Number displayed here : U.S.D.A. EST.28 When you are purchasing meat products in this store, please insist that the meatcutter identifies any product produced at the Patrick Cudahy Plant-and PLEASE, DO NOT BUY CUDAHY MADE PRODUCTS! We have absolutely no dispute with this store, nor are we asking you to stop shopping here or to refrain from buying any product except those with the Patrick Cudahy label or with U.SD.A. EST.28 attached. LOCAL P-40, UNITED FOOD & COMMERCIAL WORKERS INTERNATIONAL UNION, 3559 EAST BARNARD AVENUE, CUDAHY, WISCONSIN 53110 The other side reads, in part, as follows When you see products with U.S.D.A. EST 28 on them, they were made in the Patrick Cudahy plant for other companies regard- less of the name on the label We ask you to purchase items that do not have U.S.D.A. EST.28 marked on them and are made by Patrick Cudahy Company. [Emphasis in original.] The handbill than listed the involved products. began at 8 a.m. Regarding this handbilling, Cudahy's striking employee Michael Whitford testified that he and the two other individuals who handbilled asked people not to buy Cudahy products until the strike was settled, and they advised the shoppers that "anything with U.S. 28 on it was made by . . . Cudahy"; that neither he nor the other two individuals carried any signs nor were any signs erected while they handbilled just in front of the store; that the three handbillers did not prevent or at- tempt to prevent any customer or anyone else from en- tering the store; that the three did not attempt to halt de- liveries to the store; that at 10 a.m. an assistant manager of the store told the three that they had to leave and they replied that they were not leaving until the police came and told them to leave ; that about 10: 15 a.m. Sen- try's district manager, Bert Wagner, advised the three re- garding the prohibition of handbilling being corporate policy; that the manager told the three that they had to leave the premises; that the local police were summoned when the three refused to leave and when the police ar- rived the three were told that they were to leave from the shopping center sidewalk in front of the Sentry under threat of arrest; that the three went to the public sidewalk at the National Avenue entrance; that in addi- tion to handbilling at the National Avenue entrance they held up signs;6 that they mostly showed incoming driv- ers their signs since it was difficult to pass out leaflets in that they were warned about holding cars up at the en- trance thereby blocking other vehicles which were at- tempting to come into the parking lot; that at the West National Avenue entrance they had no way of knowing if the occupant or occupants of the incoming vehicles were going to Sentry or one of the other stores in the shopping center; and that they wanted to be able to talk to the people and ask them not to buy any Cudahy prod- ucts until the strike was settled . On cross-examination Whitford testified that they used the signs for the follow- ing reason: Well, at the store door we could talk to the people and get our message across. When they forced us onto the street we couldn't talk to the people and get our message across, so we had to have something that they could read and see, be- cause they wouldn't hear us. Even on the nice weather days the windows are up with the people that have air conditioning, on the cold weather days they are up because it is cold and a lot of people are in a hurry, they wouldn't stop and take a leaflet, or if they would they would stop, they would be blocking somebody that was in a hurry. So we had to have a means of communicating with the people, so we made up the signs. Whitford also testified that he and the others who were handbilling with him in front of the store tried to pick up the discarded handbills and they placed the ones they could not reuse in a garbage can; that he was not 6 The signs read "Please don't buy any Patrick Cudahy products " Also, the sign had "Support Local P-40" in smaller print, a round circle with the establishment number 28 with a red slash through it and the Cudahy emblem in red. SENTRY MARKETS aware of any customer complaints about the handbill- ing;7 that the above-described signs were not used when they handbilled on the sidewalk adjacent to the store; that while he handbilled on July 31 on the sidewalk adja- cent to the store between 8 and 11 or 11:30 a.m., be- tween 60 and 75 people accepted handbills from him; that during the approximately 5 hours on July 31 that he was at the entrance on West National Avenue he person- ally handbilled a total of six occupants of motor vehicles; that no one came out of the store and objected to any litter and instructed him to pick it up; that when a person did not accept a handbill he just thanked them, asked for their support, and asked them not to buy Cudahy products; that he did not stand in the person's way and he did not thrust the leaflets at them; and that the handbill was held in such a way that the customer had to reach for it so that it would be kept "out of the people's hand . . . [who did not] want them." Sometime after October 19, Whitford went to the store and showed the manager a copy of an article which appeared in the Milwaukee Sentinel on October 19. As here pertinent, the article states that "Asst. City Atty. Paul Hemmer said West Allis would not enforce the trespassing ordinance until the [instant] case was re- solved."8 (Jt. Exh. 2.) Whitford asked the manager if he, Whitford, came back leafleting, would the manager call the police again. Assertedly the manager "said something about that would be up to his bosses." While the Union did not subsequently handbill at this store, Whitford tes- tified that the Union intended to handbill there again "as soon as the weather warms up." John Verre, a vice president account supervisor with Hoffman, York & Compton, which is in the business of advertising, sales promotion, and public relations, testi- fied that Sentry has been a client of Hoffman, York & Compton for 16 years; that he personally services the Sentry account; that, in his opinion, advertising in the newspaper, direct mail, and hand delivery to households in the area designated in Respondent's Exhibit 3 would be more cost effective than handbilling at the store, Re- spondent Exhibit 4; that if there are no labor costs, hand delivery to households and handbilling would cost the same; and that the most effective way to carry the mes- sage "[D]on't buy Patrick Cudahy products" would be the newspaper." Ronald Henningsen , who is in charge of advertising of Sentry, testified that in Milwaukee, at the time of the hearing, Sentry mostly utilized direct mail; and that it does not use a handbilling approach at its stores because the store is a reflection of the kitchen and handbills on the floor and in carts reflect poorly on the store. 7 Lusic testified that he was not aware of any specific complaints from customers indicating that any of the people handbilling at the involved store were aggressive or obnoxious . Scott testified that Sentry did not have any complaints about problems with the Union 's handbills being thrown on the sidewalk outside and there were no problems in connec- tion with the Union's literature winding up in the store. a The parties stipulated that "The local law enforcement officials (West Allis City Attorneys Office) publicly announced that since October 19, 1987 and during the pendency of this proceeding , applicable trespass laws will not be enforced ." it. Exh. 1. B. Contentions 47 On brief, the General Counsel contends that the fac- tors in United Supermarkets, 283 NLRB 814 (1987), giving rise to a relatively weak property right, inter alia, the stores presence in a shopping center and the fact that the handbilling occurred on a common sidewalk open to the public, are manifest in this case ; that in addition the Respondent's property right claim is further weakened by its selective enforcement of its property right in that it allowed the Salvation Army to solicit donations at the entrance to the store; that Respondent's nuisance argu- ment is undermined by its failure to show customer com- plaints; that Respondent's litter argument must be viewed in light of Respondent's concessions that it had no com- plaints about litter from the handbills either in the store or outside, and assertedly more of a litter problem is cre- ated by Respondent's own in-store coupon and newspa- per remnants left in carts after coupons have been clipped; that as long as Respondent promotes discounts through coupons it creates an environment for a poten- tial in-store accident and it cannot prevent the Union from engaging in protected activity which creates no more risk than its own conduct; that the Union's Section 7 right is more compelling than the property right assert- ed by Respondent in that (a) assertedly the consumer handbilling here arose out of an unfair labor practice strike against Cudahy, (b) under the proviso exception to Section 8(b)(4)(ii)(B) of the Act "publicity other than picketing, for the purpose of truthfully advising the public that a product or products are produced by an employer with whom the labor organization has a pri- mary dispute and are distributed by another employer" is lawful, and (c) the Union carried out its handbilling in an orderly manner creating no interference with customers or deliveries and the Union specifically noted in its hand- bills that it was not seeking to defer potential customers from patronizing Respondent's store; that since the Union's Section 7 rights have been shown to be stronger than Respondent's property claim there is no need to ex- plore whether effective alternative means exist for the Union to articulate its message; that if such an exercise is necessary, the record demonstrates that the Union did not have a reasonable alternative location to convey its message since assertedly it was demonstrated that hand- billing at the above-described entrances was not safe either for the handbillers or for the vehicular traffic; that how ineffective handbilling at the National Avenue en- trance is demonstrated by Whitford's testimony regard- ing his experience on July 31; that a necessary conse- quence of handbilling at the National Avenue entrance was the enmeshing of customers of neutral stores; that, as pointed out in Giant Food Market v. NLRB, 633 F.2d 18, 24-25 (6th Cir. 1980), "[a] mass media campaign would also diffuse the effectiveness of the communication by being physically removed from the actual location of the store whose policies are at issue and would prevent any personal contact between the Union and the intended au- dience"; and that the employees' Section 7 right is in the asking, not the convincing , and while they had an audi- ence at the store entrance, they did not have an audience at the parking lot entrance. 48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Charging Party, on brief, contends that the Union's right to appeal to the potential purchasers of products produced by Cudahy to not purchase such products has long been recognized as a very importatnt right, NLRB v. Fruit Packers Local 760, 377 U.S. 58 (1964); that the Union also has the lawful right to appeal to the management of Respondent to not sell Cudahy's products, NLRB v. Servette, Inc., 377 U.S. 46 (1964); that pursuant to Fairmont Hotel, 282 NLRB 139 (1986), a de- termination must be made as to whether the property right claimed by Respondent on the Section 7 right as- serted by the Union is the stronger , and only in those cases where the respective claims are relatively equal in strength will effective alternative means of communica- tion become determinative; and that the Union's decision to exercise its Section 7 right to handbill in the areas it did was far more responsible and consistent with consid- erations of public safety and the respect for the interests of others, i.e., customers going to stores in the shopping center other than Respondent's, than what the Respond- ent would have had the Union do. Respondent, in brief, contends that Sentry's property rights outweigh the Union's Section 7 right in that (a) its store is one of only two dominant tenants,9 (b) the park- ing lot is restricted , and (c) assertedly handbilling and picketing have not been permitted by other organizations around the Sentry store or on the parking lot area; that sales, safety, and customer relations are all protected by Sentry's restriction on handbilling ; that since less than 1/10th of 1 percent of West Allis store sales related to Cudahy, Sentry's other sales can be damaged by timid or passive customers turning away at the mere sight of handbillers; that the Section 7 right of the Union is very weak in that its handbilling activity had no organization- al or other objective which in any fashion was linked to Sentry employees; that the Board in Fairmont Hotel, supra, observed that handbilling activities that have "no vital link" to employees located on the target employer's property are to be accorded the least amount of protec- tion along the Section 7 spectrum of protected activity; that reasonable alternative means of communication were available to the Union ; that General Counsel and the Union presented no direct evidence challenging the rea- sonableness or effectiveness of print media, community access cable television , direct mail, or hand delivery not- withstanding the fact that the burden assertedly rests with General Counsel to prove these many available al- ternatives were not reasonable ; that while General Coun- sel sought to show that handbilling on the public side- walk at the entrances to the parking lot created a traffic hazard, no accidents occurred , no traffic tickets were given to union handbillers, no police officer asked the handbillers to move, and no one filed a complaint with police; that Respondent would quickly have allowed 9 Respondent goes on to assert "[t]here are no common areas shared by all, and there is little, if any , pedestrian traffic between the stores. In short , Sentry customers enter the area to shop at Sentry , park in the parking area nearest Sentry , shop, then leave " Respondent's brief page 14 Apparently the parking lot is a common area shared by all. The side- walk at the entrance to the Sentry store also extends to the other retail establishments in the mall There are no record cites to support the other conclusionary statements in this quoted material handbillers to encroach on the parking lot area adjacent to the public sidewalk if requested or if police com- plained of a traffic hazard; and that handbilling at the store's entrances was the least cost-effective way to reach potential purchasers of Cudahy products. C. Analysis By causing striking Cudahy employees to be threat- ened with arrest on July 31, did Sentry restrain and coerce employees from participating in activities protect- ed by Section 7 of the Act, thus violating Section 8(a)(1) of the Act? In my opinion Sentry did violate the Act. This case involves handbilling on private property.' In Fairmont Hotel, supra, the Board held that in this type of case the Board is required to weigh the relative strengths of the Union's Section 7 right and the Re- spondent's property right to determine whether the Re- spondent's conduct violated the Act. If the property claim is tenuous and the Section 7 right is clearly more compelling, the Section 7 right will prevail and Respond- ent will be found to have violated the Act. Factors that may affect the relative strength or weakness of an assert- ed property right include the following: the use to which the property in question is put, any restrictions placed on public access to the property or to the facility located on the property, and the size and location of the private fa- cility. With respect to the Section 7 right, factors that may affect the relative strength or weakness of such a right include the following : the nature of the right assert- ed, the purpose for which it is being asserted, the em- ployer that is the target of the activity, the situs of the activity, the relationship of the situs to the target, the in- tended audience of the activity, and, possibly, the manner in which the right is being asserted . Id. at 142. The Board noted "organizational rights and the right to engage in primary economic activity at the situs of a dis- pute may be viewed as more compelling than handbilling and other informational activity at locations other than the primary situs." Ibid. In applying the Fairmont Hotel, analysis supra, to the facts of this case, in my opinion , the property rights as- serted are weak . Sentry's supermarket is in a small shop- ping center which the general public is invited to patron- ize. There is one customer parking lot which is shared by Respondent and the other stores in the shopping center. There are three entrances to the parking lot to provide ready access from the adjacent public streets. No measures are taken to restrict who enters through these entrances. The lot itself is restricted in that it is limited to customers only and to 1 hour parking. The 10 In DeBartolo Corp v Florida Gulf Coast Building & Construction Trades Council, 485 U S 568 ( 1988), recently the Court, in dealing with a pure handbilling situation , found that the Taft-Hartley Act's secondary- boycott prohibition does not cover a union 's peaceful distribution of handbills at the entrances to a shopping mall urging customers not to shop at the mall's stores until the mall owner promises that construction would be done using contractors who pay their employees fair wages and fringe benefits That case dealt with Sec 8(b)(4) of the Act The instant case deals with consumer handbilling in support of a primary labor dis- pute or, more specifically, a union's right to appeal to consumers of the struck product on the private property of a separate employer who offers the goods for sale SENTRY MARKETS sidewalk in front of the Sentry store runs by all the stores in the shopping center. It appears that the side- walk in front of Sentry's store is open to the general public and can be used by virtually anyone and definitely by the customers of any of the merchants in the shop- ping center. Additionally, during the holiday season the Salvation Army is allowed to solicit charitable contribu- tions in front of the store . Respondent has retained only a limited property right claim to the sidewalk in front of the supermarket. As noted above, the Board in treating Section 7 rights in Fairmont Hotel, supra, concluded that handbilling at a location other than the primary situs is not as compelling as primary economic activity at the situs of the dispute. While consumer handbilling in support of a primary labor dispute has been specifically approved by Congress in the publicity proviso to Section 8(b)(4) of the Act, and while the involved handbilling was done in an orderly manner with no demonstrated interference with Sentry's customers or deliveries, the Union's Section 7 right being exercised, in my opinion, is not more compelling than the weak property right asserted by Sentry. Since the claims asserted by the parties are relatively equal in strength, under Fairmont Hotel, supra, the effec- tive alternative means of communication available must be analyzed. As concluded by the Court in Giant Food Markets v. NLRB, 633 F.2d 18, 24 (6th Cir. 1980), an area standards picketing case: When the consumers potentially come from a large metropolitan area and cannot be categorized as a specific group patronizing a specific type of store, expensive, extensive mass media or mailer cam- paigns should not be required . If reasonableness is a criterion for determining whether or not an alterna- tive means of communication exists, the Union should not be forced to incur exorbitant or even heavy expenses. A mass media campaign would also diffuse the effectiveness of the communication by being physically removed from the actual location of the store whose policies are at issue and would prevent any personal contact between the Union and the intended audience. The advertising techniques used by merchants, includ- ing hand delivery to households, are not a reasonable al- ternative means for a union to communicate with poten- tial consumers of the involved products. The record demonstrates how ineffective handbilling was at the Na- tional Avenue entrance on July 31. Additionally, not- withstanding the fact that there were no accidents when the handbillers were at this entrance, the traffic and street lighting engineer of West Allis, Kojis, testified that there is a potential for a serious accident . Perhaps the reason there was no accident is because the handbillers did not stop cars to handbill thereby blocking the en- trance. After hearing Kojis testimony, Respondent indi- cated that if it had been asked, it would have been will- ing to let the handbillers utilize the 15 to 30 feet of the parking lot closest to those entrances in order to avoid traffic hazards. Respondent's attempt to neutralize, to an extent, Kojis' testimony demonstrates nothing more than, 49 at best, its belated appreciation for the situation it, in part, created and an attempt to remedy it, at least in theory. Utilization of the entrances to the parking lot, in the circumstances of this case , is not an effective alterna- tive means of communication. Regarding the question of litter, as indicated in foot- note 7, supra, Sentry's witness, Scott, testified that Sentry did not have any complaints about it during the involved handbilling. The manager or one of the assist- ant managers of the involved store did not testify. Re- garding the potential for in-store accidents caused by litter, in my opinion General Counsel 's position is well- taken, namely, that Respondent, with its own advertising techniques, has created an environment for a potential in- store accident and it cannot prevent the Union from en- gaging in protected activity which creates no more risk than its own conduct. Regarding the nuisance factor testified to by Scott, viz, that it is a nuisance to Sentry 's customers, such an assertion must be weighed in light of (1) Lusic's testimo- ny that he was not aware of any specific complaints from customers who indicated that any of the people handbilling were aggressive or obnoxious, (2) the failure of management people on the scene, i.e., the manager or one of the assistant managers of the involved store, to testify herein with respect to any nuisance, and (3) Scotts testimony that he would have no objection to allowing the handbilling of customers in the 15 to 30 feet of the parking lot closest to the entrances. When viewed in this light, this assertion is entitled to no weight. In the circumstances of this case, Sentry's property rights must yield. CONCLUSIONS OF LAW 1. Respondent 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. By prohibiting union representatives under threat of arrest from engaging in handbilling in front of the in- volved store, Sentry violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent violated Section 8(a)(1) of the Act, I shall order that it cease and desist there- from and take certain affirmative action which will effec- tuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended ORDER The Respondent, Sentry Markets, Inc., West Allis, Wisconsin, its officers, agents, successors, and assigns, shall 1. Cease and desist from prohibiting representatives of the Union under threat of arrest from distributing hand- bills as part of protected concerted activity at Respond- ent's West Allis, Wisconsin store. 50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post on its premises at its West Allis, Wisconsin store by the front doors copies of the attached notice marked "Appendix." " Copies of the said notice, on forms provided by the Regional Director for Region 30, " In the event no exceptions are filed as provided by Sec 102.46 of the Board's Rules and Regulations , the findings , conclusions, and recom- mended 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 purposes. after being signed by Respondent's authorized represent- ative, shall be posted by it immediately upon receipt and maintained for 60 consecutive days thereafter at the place indicated above. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply.