Midway Ford Truck Center, Inc

f 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Midway Ford Truck Center, Inc and International Association of Machinists and Aerospace Work ers District Lodge No 71 Case 17-CA-10253 11 October 1894 DECISION AND ORDER BY MEMBERS ZIMMERMAN HUNTER AND DENNIS i On an unfair labor practice charge filed on 20 ,March 1981 by the Union International Associa tion of Machinists and Aerospace Workers District Lodge No 71 the General Counsel of the National Labor Relations Board issued a complaint on 21 September 1981 against the Respondent Midway Ford Truck Center Inc alleging that it has violat ed Section 8(a)(1) of the National Labor Relations Act Copies of the complaint and notice of hearing were served on the Respondent The Respondent filed a timely answer denying the commission of any unfair labor practices and asserting certain af firmative defenses On 28 May 1982 the parties jointly moved the Board to transfer the instant proceeding to the Board without benefit of a hearing before an ad ministrative law judge and they submitted a pro posed record consisting of the formal papers and the parties stipulation of facts with attached exhib its On 29 July 1982 the Board issued an order granting the motion approving the stipulation and transferring the proceeding to the Board The Gen eral Counsel and the Respondent filed briefs The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel , On the entire record in this case the Board makes the following findings I JURISDICTION The Respondent is a Missouri corporation en gaged in the retail and nonretail sale and service of trucks at its facility located at 7601 N E 38th Street Kansas City Missouri The Respondent in the course and conduct of its business operations within the State of Missouri annually purchases goods and services valued in excess of $50 000 di rectly from sources located outside the State of Missouri Accordingly we find that the Respond ent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act 1 All dates refer to 1981 II THE UNFAIR LABOR PRACTICES A Issue The issue presented is whether the Respondent s removal of the Union s informational picket signs stationed on the Respondent s premises violated Section 8(a)(1) of the Act B Facts The Respondent operates a truck sales leasing and service facility located on the northwest corner of N E 38th Street and Randolph Road in Kansas City Missouri The facility consists of a building surrounded by a paved parking lot The parking lot is bordered by a grassy area approxi mately 30 to 40 feet wide abutting Randolph Road Similarly between the parking lot and N E 38th Street is a grassy area approximately 15 to 20 feet wide There are three entrances to the Respond ent s facility on N E 38th Street and two entrances on Randolph Road The Randolph Road entrance farthest from 38th Street is used exclusively for access to the employees parking lot All other en trances are used primarily by customers The Respondent s employees have never been represented by a labor organization On 11 Novem ber 1980 the Union commenced informational picketing at the Respondent s facility with picket signs which then and at material times later read NOTICE TO THE PUBLIC ONLY Please be advised That Midway Ford Truck Center Inc Is Non Union Please Do Not Patronize District No 71i IAMAW Teamsters Local No 552 Because there were no sidewalks bordering the facility the Union s nonemployee picketer Michael Kelly spent the greatest portion of his time through 12 March 1981' sitting in or leaning against his car which was parked on Randolph Road across the street from the Respondent s facili ty Kelly affixed picket signs to the front side and back of the car On a few occasions Kelly walked in the street next to the curb or on the grass no more than 3 to 4 feet from the curb between two of the customer entrances on 38th Street On 12 March Kelly was joined by the Union s business representative John Hams Kelly picketed on the grass next to the Randolph Road curb 272 NLRB No 116 MIDWAY FORD TRUCK CENTER 761 while Hams picketed on the grass next to the 38th Street curb In addition the picketers stationed a picket sign mounted on a wooden stick and an chored by a concrete cinder block next to the Randolph Road customer entrance for 1 hour Hams and Kelly removed the sign when they ceased picketing for the day On 13 March Kelly again posted a stationary picket sign on the grass next to the Randolph Road customer entrance He then returned to his car An hour later the Respondent s general manager Don Ahnger removed the sign and returned it to Kelly with the statement that he did not want Kelly s sign on the property This marked the first time that the Respondent s agents had noticed a picket sign affixed to its property For the remainder of the day Kelly carried a picket sign between Ran dolph Road and the 38th Street customer en trances walking on the grass no more than 3 to 4 feet from the curb On 14 March Kelly posted stationary signs ap proximately 2 feet from the curb at the Randolph Road and 38th Street entrances respectively Ahnger had them removed and returned to Kelly The picketer remained in his sign bedecked car or in ambulatory protest for half a day On 17 March the Respondent s attorney told the Union that the Respondent did not object for safety reasons to the picketer walking on the Re spondent s property instead of on the street but did object to placing any stationary picket signs on its property The attorney also told the Union that he had advised the Respondent to remove such signs On the same day Kelly placed another sign on the Respondent s property It was removed and re turned to him From 17 March until 14 April Kelly parked his car at curbside on Randolph Road on the same side of the street as the Respondent s facility The car still had three picket signs affixed to it On 14 April Kansas City traffic control posted no park mg signs on the Respondent s side of Randolph Road Thereafter Kelly parked the car on the op posite side of Randolph Road and continued occa sionally to walk on the Respondent s grass while carrying a picket sign On 20 July Kelly ceased all forms of picketing at the Respondent s facility On 8 September Kelly resumed picketing in the same manner described above On 15 September Kelly again placed two signs on the Respondent s proper ty and the Respondent removed them C Contentions of the Parties The General Counsel contends that the Respond ent violated Section 8(a)(1) of the Act by removing the Union s stationary picket signs The General Counsel argues that the Union s picketing on the Respondent s property was protected by Section 7 of the Act because it was done with the Respond ent s permission was limited in nature was the only effective means of communicating its message to the public and was not in any way destructive of the Respondent s property The General Coun sel maintains that the stationary picket signs were an integral part of the Union s ambulatory picket ing and entitled to the same protection 2 The Respondent argues that it could lawfully prohibit the Union s posting of stationary picket signs on the Respondent s property under the prin ciples set forth in NLRB v Babcock & Wilcox Co 351 U S 105 (1956) because the Union through ambulatory picketing had other reasonable means of communicating its message to the public The Respondent also contends that it made a reasonable accommodation with the Union when it allowed the Union to picket on its property for safety rea sons Finally the Respondent asserts that because the Union had alternative means of promulgating its message there is no need to reach the question whether the posting of the stationary signs on its property constituted picketing For these rea sons the Respondent contends that the complaint should be dismissed D Discussion of Law and Conclusions The Supreme Court in Babcock & Wilcox supra and in Sears Roebuck & Co v Carpenters 436 U S 180 (1978) set forth the criteria for accommodating conflicts between an employer s private property rights and nonemployee trespassory activity to pro mote employees Section 7 rights The Court stated in Babcock & Wilcox that an employer may bar nonemployee union access to its property unless the union has sustained its burden of showing either that there were no other reasonable means available to communicate its message or that the employer s bar discriminated against the union In Sears the Court said that the burden imposed on the union to demonstrate the absence of reasonable alternative means of communication was a heavy one 3 Assuming arguendo that unattended stationary picket signs constitute protected picketing within the meaning of the Act we find that the signs here were not an integral feature of the Union s ambula tory picketing and therefore do not require a single evaluation of trespassory impact The picket signs were generally unattended as Kelly sat for most of 2 There is neither allegation nor evidence that the Respondent s re moval of the Union s signs constituted discriminatory practice with re spect to the posting of any signs on the Respondent s private property 3 436 U S at 205 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the time in his car or as he (and Hams on 12 March) occasionally conducted ambulatory picket mg from one to another of the Respondent s sever al customer entrances Similarly the Respondent s condonation of ambulatory picketing on the fringe of its property clearly did not extend to permitting the posting of picket signs in the same area The Respondent justifiably distinguished between the two channels of communication here in viewing the posting of unattended picket signs as a greater intrusion on its property rights than ambulatory picketing along the edge of the property The latter was permitted for reasons of safety No such reason applies to the posting of the signs In these circumstances permission for the one does not give license to the other Finally there has been no showing that reasona ble alternatives to the posting of unattended picket signs were unavailable to the Union On the con trary the Union had the ability to communicate its message to the general public by continuing Kelly s ambulatory picketing on the Respondent s prem ises by increasing the number of picketers and by displaying the picket signs on Kelly s car while parked on the street opposite to the Respondent s facility Further as previously noted there is no al legation that the Respondent s bar discriminated against the Union Accordingly the Respondent s removal of the posted picket signs was lawful and we shall dis miss the complaint 4 ORDER The complaint is dismissed In agreeing with his colleagues that the Respondent did not violate the Act by removing the stationary picket signs from its property Member Hunter relies solely on the General Counsel s failure to establish that the Union lacked reasonable alternative means of conveying its mes sage to the relevant audience Member Hunter notes that the fact that the Respondent permitted ambulatory picketing on its property is irrelevant to the question whether It could prohibit unattended stationary picket signs except Insofar as it might indicate that the Union had alternative means of communicating its message