NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,573, LESLIE HOMES INC. and METROPOLITAN DISTRICT COUNCIL OF PHILADELPHIA & VICINITY, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, INC., (Jan. 25, 1995), National Labor Relations Board, (Jan 25, 1995)

LESLIE HOMES INC. and METROPOLITAN DISTRICT COUNCIL OF PHILADELPHIA & VICINITY, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, INC.

316 NLRB No. 29.Case No. 4-CA-18791. January 25, 1995

Before Gould, Stephens, Browning, Cohen and Truesdale.

Access to Company Property--Picketing and/or Handbilling--Area Standards.--Although it ordered union representatives to leave its premises and called the police to have them removed from the property, an employer did not interfere with the free exercise of its employees’ right to organize. Reasonable alternate means were available to the union for communicating its “area standards” message to potential customers of the employer since the union had a clear, unobstructed opportunity to handbill from adjacent public property. Section 8(a)(1).

Back reference: ¶3825.668.

From Text of Board’s Decision

This is the first occasion for us to consider how the Supreme Court’s decision in Lechmere, Inc. v. NLRB, 117 L.Ed. 2d 79 (1992), affects an employer’s right to bar nonemployee union representatives from engaging in “area standards” handbilling on the employer’s private property. The narrow issue before us is whether the Respondent violated the Act by refusing to permit representatives of the Union to distribute leaflets to potential home buyers on the Respondent’s premises. For the reasons discussed in part II, D below, we find that the Respondent did not violate the Act as alleged.

Procedural Background

On a charge filed by the Union on April 2, 1990, the General Counsel of the National Labor Relations Board by the Regional Director for Region 4 issued a complaint and notice of hearing on September 27, 1990. The complaint alleged that the Respondent violated Section 8(a)(1) when it interfered with the distribution by union representatives of union literature to prospective purchasers of residential condominiums built by the Respondent at the site known as Crestwood Condominiums. On October 11, 1990, the Respondent filed an answer admitting in part and denying in part the allegations of the complaint, and denying that it had violated the Act.

On February 25, 1991, the General Counsel, the Respondent, and the Union filed with the Board a stipulation of facts. The parties agreed that the charge, affidavit of service of the charge, complaint and notice of hearing, the Respondent’s answer, the order postponing a hearing indefinitely, and the stipulation of facts with attached exhibits constitute the entire record in this case. The parties further stipulated that they waived a hearing and the making of findings of fact and conclusions of law and the issuance of a decision by an administrative law judge.

On June 6, 1991, the Board issued an order approving the stipulation of facts and transferring the proceeding to the Board. The General Counsel and the Respondent filed briefs. The Union joined the brief of the General Counsel.

On February 24, 1992, the General Counsel filed a motion to dismiss the complaint, asserting that the Supreme Court’s January 27, 1992 decision in Lechmere precluded further prosecution of the complaint. On March 9, 1992, the Charging Party filed a response to the motion to dismiss. On April 17, 1992, the Board issued a notice inviting the parties to submit supplemental briefs concerning the impact of Lechmere on this case. The General Counsel and the Charging Party filed supplemental briefs.

On the entire record, the Board makes the following

Findings of Fact

I. Jurisdiction

The Respondent is a Pennsylvania corporation engaged in the building and developing of residential real estate with its principal place of business in Holland, Pennsylvania. During the 12-month period preceding the execution of the parties’ stipulation of facts, the Respondent derived gross revenues in excess of $500,000 and purchased and received materials and supplies valued in excess of $50,000 directly from points located outside the Commonwealth of Pennsylvania. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

We further find that the Union, Metropolitan District Council of Philadelphia and Vicinity, United Brotherhood of Carpenters and Joiners of America, is a labor organization within the meaning of Section 2(5) of the Act.

II. The Alleged Unfair Labor Practice

A. Facts

The parties stipulated to the following background facts. The Crestwood project (Crestwood) is a development containing 288 residential condominium units. Construction began on the project in December 1988 and was expected to be completed in June 1991. At the time the stipulation was signed, approximately 200 of the 288 anticipated units had been completed and 180 were occupied. There are no commercial enterprises on or near the project.

Condominium owners own their own individual units. A condominium association composed of condominium space. The Respondent owns the controlling interest in the association. The Respondent also owns the undeveloped common space.

The evidence before us consists of a written stipulation of facts, a videotape made by the Union of several of the key sites, and an engineering blueprint (declaration plan) of the development. The physical layout of the project and its surroundings is described and illustrated in these items. The entire project sits on the north side of Oxford Valley Road, a two-lane thoroughfare (one lane in each direction) with a speed limit at that location of 45 miles per hour. Vehicles may enter and exit Crestwood only two ways, by Leslie Drive or Norwalk Drive. These two streets, privately owned by the condominium association, intersect only with each other inside the project, and with Oxford Valley Road at the entrances to the project.

Leslie Drive is the main entrance to Crestwood. A landscaped traffic island at this entrance separates the one lane entering Crestwood from two exit lanes, one for vehicles turning right onto Oxford Valley Road, and one for those exiting to the left. There is a stop sign at the Leslie Drive exit onto Oxford Valley Road. Vehicles turning right into the project may pull first onto a 9-foot shoulder of Oxford Valley Road before turning onto Leslie or Norwalk. The Norwalk Drive entrance from Oxford Valley Road is approximately 500 feet from the Leslie Drive entrance. Like Leslie Drive, Norwalk Drive’s entering and exiting lanes are divided by a traffic island, although Norwalk has only one exit lane. Whereas the traffic island in Leslie Drive is entirely on Crestwood property, a small portion of the Norwalk Drive island extends beyond the property line. [1]

A public sidewalk 4 feet wide runs the entire length of the Crestwood property along Oxford Valley Road. The inner edge of the sidewalk and the Crestwood property line are separated by a grassy area 3 feet wide. Between the sidewalk and Oxford Valley Road is a public grassy verge, also 3 feet wide. Prior to the incidents giving rise to these charges, the project was posted with a no-trespassing sign, but its location and contents are not part of the record. The no-trespassing policy had been enforced prior to the date of the stipulation; most instances of enforcement involved adolescents. The Respondent contracts with a security company to provide security in the evenings.

At the time the stipulation was executed, a model condominium, located on Leslie Drive, 225 feet inside the entrance, was open for inspection by potential customers 7 days a week from 10 a.m. to 6 p.m. Approximately 12 to 35 persons visited the model home on Sundays, the busiest day. A substantial majority of potential buyers enter the development by vehicle, while a relatively small percentage enter on foot.

When construction commenced, union carpenters employed by Samuel Kaufman, Inc., worked on the first 50 units. In December 1989, however, the Respondent began to employ carpenters directly. The Respondent has not paid these carpenters prevailing union wages or benefits.

On April 1, 1990, the Union attempted to distribute handbills in front of the model condominium open to the public for inspection. The handbills communicated, among other messages, a complaint that the Respondent was paying some workers on the project below the area standards for such labor. The handbill stated:

This is an appeal to the general public. Leslie Homes, Inc. employs foreign/immigrant workers at Crestwood, who are paid substantially less than the prevailing wage and benefit standards in the area. Leslie Homes, Inc. is destroying the fair wages and living standards of area tradesmen who return their earnings to the local economy by purchasing goods, services and housing, and by paying local and federal taxes.

The document then questioned the quality of the homes at Crestwood and ended with the exhortation, “Exercise caution before signing an agreement of sale. Protect the American dream--don’t buy at Crestwood.” The number of handbillers is not in the record. The handbillers were peaceful. At times, they were within 5 to 10 feet of the door of the model.

At some point during that day, the Respondent told the handbillers that they were on private property and directed them to leave. The handbillers refused to do so. An agent of the Respondent then called the police, who at first declined to take action against the handbillers. After the Respondent’s president contacted the district attorney’s office, however, the police advised the union representatives that they were subject to removal and arrest if they did not leave the premises. The police then allowed the union representatives to leaflet on the shoulder of Oxford Valley Road.

After April 1, the Union twice attempted from the shoulder of Oxford Valley Road to leaflet vehicles as they entered the project. On both occasions, traffic was slowed on Oxford Valley Road. The Union has never picketed at Crestwood.

B. Issue

The issue is whether the Respondent violated Section 8(a)(1) of the Act by refusing to permit the union representatives to engage in handbilling of potential home buyers on the Respondent’s property and by calling the police to have the handbillers removed from the property.

C. Contentions of the Parties

Before the Supreme Court issued its decision in Lechmere, the General Counsel and the Union contended that, under the method of analysis set forth in Jean Country, [1988-89 CCH NLRB ¶15,118] 291 NLRB 11 (1988), the union representatives should have been afforded access to the Respondent’s property for the purpose of handbilling. The Respondent argued that, under a proper reading of Jean Country, it was not required to allow the union representatives on its property.

Since Lechmere issued, the General Counsel has taken the position that, under the Supreme Court’s analysis in that case, the Union was not entitled to access to the Respondent’s property. The Union contends that, because Lechmere was concerned with union access to an employer’s property for organizing purposes, the Supreme Court’s decision does not apply to this case, which involves “area standards” handbilling of consumers rather than organizational activity. Accordingly, the Union argues that the Board should apply the Jean Country analysis, under which, in the Union’s view, the Respondent violated the Act as alleged. [2]

D. Discussion

The problem presented by this case is a familiar one. The union representatives attempted to engage in peaceful “area standards” handbilling, an activity that is protected by Section 7 of the Act. [3] The Respondent, by virtue of its controlling interest in the condominium association that owns the developed common portions of Crestwood and its sole ownership of the undeveloped common areas, as well as the street contiguous to the model home, has a legitimate private property interest in the Crestwood development. [4] The issue was joined when the Union attempted to assert the Section 7 right in contravention of the Respondent’s right to prevent strangers from trespassing on its property.

The seminal authority in this area is the Supreme Court’s decision in Babcock & Wilcox. [5] The issue in Babcock & Wilcox was whether, and under what circumstances, an employer is required to allow nonemployee union representatives access to the employer’s property for the purpose of organizing his employees. The Court held that:

[A]n employer may validly post his property against nonemployee distribution of union literature if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message and if the employer’s notice or order does not discriminate against the union by allowing other distribution. [6] ... Organization rights are granted to workers by the same authority, the National Government, that preserves property rights. Accommodation between the two must be obtained with as little destruction of one as is consistent with the maintenance of the other.... [W]hen the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels, the right to exclude from property has been required to yield to the extent needed to permit communication of information on the right to organize. ... [I]f the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them, the employer must allow the union to approach his employees on his property. [351 U.S. at 112-113.]

Although the Section 7 activity involved in Babcock & Wilcox was organizational, the Court in later cases indicated that the “accommodation” analysis in Babcock should be applied in other contexts as well. See Hudgens v. NLRB, [78 LC ¶11,278] 424 U.S. 507, 522 (1976) (lawful economic strike activity); Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, supra, 436 U.S. at 207 (area standards picketing). In Hudgens, the Court stated that:

The locus of that accommodation, however, may fall at differing points along the spectrum depending on the nature and strength of the respective Section 7 rights and private property rights asserted in any given context. In each generic situation, the primary responsibility for making this accommodation must rest with the Board in the first instance. [424 U.S. at 522; citations omitted. [7]

In Jean Country, the Board set forth an analytical framework to be used in determining the accommodation to be made in all access cases. The Board announced that in each case it would consider the strength of the employer’s property right, the centrality of the Section 7 right, and the availability of reasonable alternative means for the dissemination of the union’s message:

[I]n 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. [291 NLRB at 14.]

In formulating its Jean Country analysis, the Board adverted to the Supreme Court’s statement in Hudgens, quoted above, to the effect that “there is a ‘spectrum’ of Section 7 rights and private property rights and that the place of a particular right in that spectrum might affect the outcome of a case.” Id. at 13. Thus, the Board announced that when the employer has particularly compelling reasons for denying access and the Section 7 right asserted is less central than the right of employees to organize or protest unfair labor practices, “we may more readily find that [nontrespassory] means of communication ... constitute a reasonable alternative.” Id.

The Supreme Court in Lechmere rejected the Board’s Jean Country approach. The Court’s majority found that the Board, in relying on the quoted language in Hudgens, had misconstrued Babcock & Wilcox. According to the Court, Babcock stands for the proposition that “Where reasonable alternative means of access exist, Section 7’s guarantees do not authorize trespasses by nonemployee organizers, even (as we noted in Babcock ...) ‘under ... reasonable regulations’ established by the Board.” 117 L.Ed 2d at 91. Thus, the Court said that Hudgens, “did not purport to modify Babcock, much less to alter it fundamentally in the way Jean Country suggests.” Id. The Court then stated:

To say that our cases require accommodation between employees’ and employers’ rights is a true but incomplete statement, for the cases also go far in establishing the locus of that accommodation where nonemployee organizing is at issue. So long as employee union organizers have reasonable access to employees outside an employer’s property, the requisite accommodation has taken place. [Emphasis added.] It is only where such access is infeasible that it becomes necessary and proper to take the accommodation inquiry to a second level, balancing the employees’ and employers’ rights as described in the Hudgens dictum. [Id. at 91-92.]

The Court found that Jean Country impermissibly recast, as “multifactor balancing test,” the general rule set out in Babcock that “an employer may validly post his property against nonemployee distribution of union literature.” Id. at 92, quoting Babcock & Wilcox, 351 U.S. at 112.

Thus, the Court explained, the threshold inquiry in Lechmere was whether Babcock’s inaccessibility exception could properly be applied in that case. Contrary to the Board, the Court found that the exception was not applicable. It emphasized that

the exception to Babcock’s rule is a narrow one. It does not apply whereever nontrespassory access to employees may be cumbersome or less-than-ideally effective, but only where “the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them. [117 L.Ed. 2d at 92; emphasis in the original; quoting Babcock & Wilcox, 351 U.S. at 113.]

The Babcock exception, said the Court, was designed to safeguard the rights of “those employees who, by virtue of their employment, are isolated from the ordinary flow of information that characterizes our society,” such as employees in mining camps, logging camps, or mountain resort hotels. Id. (Citations omitted.) The union’s burden of establishing such isolation is a heavy one, [8] the Court continued, and cannot be satisfied “by mere conjecture or the expression of doubts concerning the effectiveness of nontrespassory means of communication.” Id. at 92-93.

Turning to the facts of the case before it, the Court in Lechmere found that the union had failed to carry its burden. First, the Court held that because the employees who were the focus of the union’s organizing efforts did not live on Lechmere’s property, they were presumptively not beyond the reach of the union’s measage. Id. at 93. Nor had the union rebutted that presumption. The employees’ accessibility, the Court found, was indicated by the union’s having contacted a susbstantial percentage of them directly, through mailings, telephone calls, and home visits. Such direct contacts, however, were not the only, or even a necessary, means of communication; “signs or advertising also may suffice.” Declining to pass on the Board’s finding that advertising in local newspapers (which the union had tried) was not reasonably effective because it was expensive and might not reach the employees, the Court found that other means of communication were “readily available.” Thus, the union could have placed signs on the public property abutting Lechmere’s parking lot to apprise the employees of the organizing campaign. In fact, the union had picketed the entrance to the parking lot for months as employees were arriving at and leaving work. In summary, the Court found that access to employees, rather than success in winning them over, is the critical issue, [9] and because the union had failed to identify any “unique obstacles” frustrating access to the employees, [10] the employer had not acted unlawfully in barring the union organizers from its property. Ibid.

In Lechmere, as we have noted, the Section 7 activity engaged in by the union representatives was organizational. In this case, the Section 7 activity is area standards handbilling. We turn now to a consideration of the effect of Lechmere in the present context. At least three issues have been suggested: (1) whether Lechmere applies at all outside the organizing sphere, (2) whether, after Lechmere, the Babcock exception for inaccessible employees may be invoked when the target of the union’s message is the employer’s customers instead of its employees, and (3) assuming the applicability of the Babcock exception, whether the Union here carried its “heavy burden” of showing that it faced “unique obstacles” that so frustrated its attempts to reach the customers that it should have been allowed to handbill on the Respondent’s premises.

1. Does Lechmere apply to area standards activities?

The Union and our dissenting colleagues contend that Lechmere does not apply in the area standards context. They reason that Section 7 protects not only employees’ organizational efforts, but also their right “to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection,” such as the handbilling in this case. The Court in Lechmere held that “the NLRA confers rights only on employees, not on unions or their nonemployee organizers,” 117 L.Ed.2d at 87, and reiterated the distinction made in Babcock “between the organizing activities of employees [to whom Section 7 guarantees the right of self-organization] and nonemployees [to whom section 7 applies only derivatively].” Id. at 88. The Union and the dissent, however, argue that the Court’s rationale applies only in the organizational context, because only in that setting do union representatives who are not employed by the targeted employer possess only “derivative” Section 7 rights. They contend that the handbillers in this case were exercising their own (nonderivative) Section 7 rights, and also represented the Union’s members who, though not employees of the Respondent, have exercised their Section 7 right to join a labor organization and to engage in “other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” According to the dissent, “Lechmere’s reasoning, which limited itself to the self-organizing guarantee of Section 7, does not address their activities.” See Loehmann’s Plaza II, 316 NLRB No. 24, slip op. at 8 (Members Browning and Truesdale, dissenting).

We find no merit to this argument. In the first place, given the Court’s concern in Lechmere with protecting employers’ private property rights, [11] we can discern no reason to assume that it would apply its reasoning only in organizing cases. It is true, as the Union and the dissent observe, that the Court in Lechmere addressed only the right of nonemployees to organize on an employer’s property, and did not discuss nonemployee access for other purposes. We find no suggestion in the Court’s opinion, however, that it focused on organizing activities for any reason other than that Lechmere was an organizing case, and that the Court was simply (and prudently) deciding the case before it. Moreover, given the Court’s previous indications that the Babcock “accommodation” principle applies in nonorganizational settings, [12] we would not expect the Court to limit sharply that principle to organizing cases without some overt signal to that effect. We find no such signal in Lechmere. To the contrary, the Court quoted (and reaffirmed) “Babcock’s general rule” that “an employer may validly post his property against nonemployee distribution of union literature,” 117 L.Ed.2d at 92. The Court omitted the arguably qualifying language in Babcock “if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message[.]” 351 U.S. at 112 (emphasis added). [13] By phrasing the “general rule” against trespassory activity without reference to the language arguably limiting it to attempts to reach employees, the Court, if anything, was signalling that Babcock should continue to be applied outside the organizing context. [14]

The argument advanced by our colleagues and the Union is unsound for another reason. The dissenters urge that nonorganizational activities, such as area standards picketing and handbilling, are protected not by the Section 7 right of self-organization but by “Section 7’s guarantee of a right not treated in Lechmere--the right of employees ‘to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.'” Loehmann’s Plaza II, slip op. at 8 (Members Browning and Truesdale, dissenting). As the latter right is not derivative of the rights of the Respondent’s employees, our colleagues contend, it is not reached by the Court’s reasoning in Lechmere; accordingly, under their theory, the Board is free to require access under the “other concerted activities” rubric in nonorganizational cases, even after Lechmere.

The obvious problem with that position is that it would seem to have been equally applicable in the organizational setting, where the organizing could be seen as benefitting already organized employees against nonunion competition. Yet the argument can be made that it was implicitly rejected in Lechmere. As our colleagues point out, the Court in Lechmere did not discuss the possibility that the organizers’ activities could be protected under the “other concerted activities for the purpose of ... other mutual aid or protection” language of Section 7, yet it found that nonemployee organizers have only derivative Section 7 rights. [15] Thus, it is at least arguable to read the Court’s decision as indicating that the organizers would have fared no better under the “other concerted activities” theory propounded by the dissent. Under that interpretation of Lechmere, trespassory nonorganizing activity would never be protected because, as our colleagues rightly point out, the Respondent’s customers whom the nonemployees are attempting to reach with their area standards message have no Section 7 rights corresponding to the employees’ right of self-organization, and thus the nonemployees would not even have the limited derivative rights possessed by nonemployees in the organizing setting. [16]

As our colleagues point out, the foregoing reading of Lechmere is not the only possible one. But even if their alternative rights theory is cognizable after Lechmere, our colleagues fail to explain why the Bobcock analysis, as explicated in Lechmere, should favor access more for nonemployees engaged in nonorganizational “other concerted activities” than for nonemployee organizers. That failure is perhaps understanble in light of Sears’ suggestion that nonemployee area standards activities are less favored under the Babcock analysis than nonemployee organizational efforts. 436 U.S. at 206 and fn. 42.

Our colleagues assert that “Sears’ access discussion cannot be regarded as conclusive” because access was involved only tangentially in a preemption case. Loehmann’s Plaza II, slip op. at 12 (Members Browning and Truesdale, dissenting). The latter assertion is somewhat startling, given Lechmer’s flat statement that “If there was any question whether Central Hardware [17] and Hudgens changed Section 7 law, it should have been laid to rest by Sears[.]” 117 L.Ed.2d at 89.

2. Is the Babcock exception applicable to area standards activities?

The Ninth Circuit has construed the Supreme Court’s decision in Lechmere to mean that the Babcock exception, providing for access by union organizers to isolated employees, does not apply to union representatives who are attempting to contact, instead of an employer’s employees, an employer’s customers. John Ascuaga’s Nugget v. NLRB, supra. This is a question we need not and do not decide today because, as we discuss below, we find that, under Lechmere, the Union did not demonstrate that the Respondent’s customers were so isolated that the handbillers should been permitted to approach them on the Respondent’s premises. [18]

3. Did the Union have reasonable alternative means of contacting the Respondent’s customers?

We assume, without deciding, that Lechmere permits a union to show that an employer’s customers are not reasonably accessible by nontrespassory methods and that union representatives therefore may be entitled to engage in area standards activities on the employer’s property. [19] In Lechmere, however, the Supreme Court made it clear that, even in organizing cases, Babcock’s inacessibility exception applies only in unusual circumstances. As we noted above, the Court stated that the Babcock exception applies only in unusual circumstances. As we noted above, the Court stated that the Babcock exception applies only when, because of the location of a plant and the living quarters of the employees, the employees are beyond the reach of the union’s reasonable attempts to communicate with them. 117 L.Ed.2d at 92. The union has the heavy burden of establishing that the employees, because of the nature of their employment, are “isolated from the ordinary flow of information that characterizes our society.” Id. Unless the Union can show that “unique obstacles” exist that frustrate access to the employees, the employer is entitled to bar the union from his property. Id.. at 93. Employees who do not reside on the employer’s property are presumptively not beyond the reach of the union’s message. Id. We assume, for purposes of deciding this case, that the same principles apply when a union seeks access to an employer’s property to communicate an area standards message to the employer’s customers.

Apply the foregoing principles to the stipulated facts of this case, we find that the Union has not shown that the Respondent’s customers are “isolated from the ordinary flow of information that characterizes our society,” or that it lacks reasonable alternative means of contacting them. [20] We arrive at that finding for two reasons. First, the Union has not shown that it could not have adequately conveyed its message to the Respondent’s customers by picketing or placing stationary signs on the public property between Oxford Valley Road and the Crestwood development. [21] (The Union never attempted to picket on the public property, and it does not contend that the essential message contained on the handbills could not have been satisfactorily rendered on picket signs.) [22] As we have noted, the public property extends the entire width of the Respondent’s property, and abuts Leslie Drive and Norwalk Drive--the only two routes an automobile can take into the development. The public property is 10 feet wide, including a 4-foot wide sidewalk where pickets could safely patrol. In addition, although the speed limit on Oxford Valley Road is 45 miles per hour, it is apparent that cars turning into the development at either Leslie Drive or Norwalk Drive would have to slow down considerably to execute what is approximately a 90-degree turn into the Crestwood property at either point, and also (in the case of cars turning right into the development) normally would move onto the shoulder, nearer to any signs the Union might place on the public property. It appears, then, that either stationary signs or picket signs on the public property near the entrances to the property would be clearly visible to drivers slowing down to enter the Crestwood development. There is nothing in the stipulated record to suggest that picketing, or the placement of stationary signs, on the public property would have posed any safety hazard to either the union representatives or to passing motorists.

We further find that the Union failed to demonstrate that it could not have communicated its message to potential home buyers as they left the Crestwood property. We first observe that the condominiums sold on the Respondent’s premises differ markedly, in the sheer size of the investment being contemplated, from groceries, blue jeans, and other nondurable items sold at retail. Experience thus supports the Respondent’s common sense argument that potential home buyers are likely to engage in extensive comparison shopping before they make a purchase. The Respondent’s potential buyers generally will not have already made their purchases at the time they leave the premises, and the Union therefore can effectively approach them as they leave, rather than only as they enter. [23]

In addition, the record establishes that union representatives stationed on public property outside the Leslie Drive entrance would have a clear, unobstructed view of the model home and the parking area in front of it. It would have been possible for those representatives to watch the parking area to identify the cars driven by individuals visiting the model home, and then to attempt to give them handbills as they left the development. [24] In this regard, it should be recalled that there is a stop sign at the Leslie Drive exit from the Crestwood property the closest exit to the model home. It therefore would not have been necessary for union representatives wishing to handbill exiting customers to attempt to flag down moving cars or to station themselves in the middle of the intersection; they could have remained on the sidewalk or on the grassy areas next to Leslie Drive and approached the cars as they stopped for the stop sign. [25] Nor would the use of this tactic have required the handbillers to run continuously back and forth between the public property and the customers’ cars; the parties have stipulated that even on Sundays, usually the busiest day of the week, only 12 to 35 persons visit the model home, between 10 a.m. and 6 p.m.--an average of, at most, between 4 and 5 per hour. Under these circumstances, we find that approaching individuals who had visited the model home as they left the Crestwood property would have been a reasonable alternative to handbilling on the property itself.

For all the foregoing reasons, we find that reasonable alternative means were available to the Union for communicating its area standards message to potential customers of the Respondent, and, a fortiori, that it has failed to carry its burden of showing the absence of such means. We therefore find that the Respondent did not act unlawfully by ordering the Union representatives to leave its private property and by calling the police to have them removed, and we shall dismiss the complaint.

[Concurrence]

Chairman Gould, concurring: I join members Stephens and Cohen in dismissing the complaint in this case and add the following additional comments.

The place of work is the one area where workers come together on a daily or regular basis and have an opportunity to share views and to discuss matters such as employment conditions and the question of whether they desire to be represented by a union through the collective-bargaining process, and to “learn from others the advantages of self-organization ....” Justice White dissenting in Lechmere, Inc. v. NLRB, [120 LC ¶11,066] 112 S. Ct. 841, 851 (1992). The same hold true of the union’s ability to communicate its message to the consuming public when the latter is present on private property to which the public has access.

As Justice Frankfurter noted in a concurring opinion, title to property does not properly control this issue. March v. Alabama, 326 U.S. 501, 511 (1946). This view, expressed within the context of constitutional litigation, has always seemed to me to be relevant to the issues relating to the competing interests of the right to organize, to learn from others, and to communicate to the public, on the one hand, along with the employer’s legitimate interest in its property. Gould, The Question of Union Activity on Company Property, 18 Vand. L. Rev. 73 (1964); Gould, Union Organizational Rights and the Concept of “Quasi Public” Property, 49 Minn. L. Rev. 506 (1965). cf Bok, Reflections on the Distinctive Character of American Labor Laws, 84 Harv. L. 1394 (1971). [26]

Regrettably, however, the majority opinion of the Supreme Court in Lechmere resolves the issue definitively. I am, of course, bound by the Supreme Court’s view of this matter and, like Members Stephens and Cohen, I am of the view that Lechmere creates no distinction and send no “signal” that union efforts to reach customers and the public ought to be treated differently from the initiatives undertaken in Lechmere itself. Under the circumstances of this case, the reasoning employed in Lechmere applies, and, therefore, I am required to join and concur in opinion of members Stephens and Cohen. If there is to be a different result, it must come from the President and the Congress and not the Board.

[Dissent]

Members Browning and Truesdale, dissenting: Contrary to our colleagues, we would find that the Respondent violated Section 8(a)(1) of the Act by interfering with the Union’s peaceful distribution of handbills in front of the Respondent’s model home advising potential purchasers that the Respondent did not pay the carpenters its employed prevailing wages and benefits. In dismissing the complaint, our colleagues erroneously extend Lechmere, Inc. v. NLRB, 112 S.Ct. 841 (1992), to nonorganizational activity, such as the area standards handbilling involved in the instant case. In our joint dissent in Loehmann’s Plaza II, [1993-94 CCH NLRB ¶15,574] 316 NLRB No. 24 (Jan. 25, 1995), issued today, we discussed in detail the many flaws we find in the majority’s approach. We will not repeat that entire discussion here, but rather we will summarize below the principles we consider controlling and will then apply those principles to the facts of this case.

[Board Precedent]

We stated in our Loehmann’s Plaza II dissent that Lechmere must be understood in its setting. Lechmere presented the question whether the employer violated Section 8(a)(1) by denying nonemployee union representatives access to its property for the purpose of persuading the employer’s unorganized employees to select the union as their bargaining representative. Lechmere’s holding is explicitly limited to “nonemployee organizational trespassing,” 112 S.Ct. at 847, and its rationale is entirely dependent on the existence of organizational activity.

The Lechmere Court focused on the Section 7 right to self-organization guaranteed to employees. Nonemployee union organizers do not themselves possess this Section 7 right. Rather, Section 7 applies “only derivatively” to nonemployee union organizers because their role is essentially one of communicating information to the unrepresented employees. 112 S.Ct. at 846. However, where, as in Loehmann’s Plaza II and the instant case, nonemployee union representatives are engaged in area standards protests and appeals to the public, a different Section 7 right is involved (the right to engage in concerted activity for mutual aid and protection). In this context, the rights of the union representatives are not derivating of those of the audience they are trying to reach. “Rather, the rights of nonemployee union representatives engaged in nonorganizational Section 7 activities are their own rights or those that arise from their role as agents of employees who have already exercised their Section 7 right to select a labor organization as their representative.” Loehmann’s Plaza II, 316 NLRB No. 24, slip op. at 9 (dissenting opinion) (emphasis added). Therefore, Lechmere’s emphasis on derivative rights is wholly inapposite.

In addition, we pointed our in our Loehmann’s Plaza II dissent that Lechmere’s rationale is largely grounded on the finite and easily identifiable nature of the audience that the nonemployee organizers were attempting to reach. The Court’s analysis simply does not apply when the intended audience cannot be readly identified and is geographically diffuse, as in the case of a consumer boycott and area standards protest.

Accordingly, we stated in our Loehmann’s Plaza II dissent that we would limit the Lechmere access analysis “to the circumstances to which the Court limited it in the Lechmere case itself: access by union organizers to an employer’s property for the purpose of organizing that employer’s employees.” Id. at 11-12. In other access cases, we would apply the following test:

[W]e would seek to determine in every case involving union protests which are directed at purposes other than organizing the employees of the employer on whose property the union is seeking access, whether the union representatives or members had reasonable alternative means of cummunicating their message to their intended audience. In making these determinations, we would consider the nature of the audience to whom the message is targeted and the impediments which the union faces in getting its message to that audience without the access to the property which it is seeking. In addition, we would, in every case, factor in the nature and strength of the employer’s property interest versus the importance of the Section 7 right asserted by the union. This is similar to the analysis which the Board applied to union protests which were directed at either the general or the consuming public prior to its Jean Country [291 NLRB 11 (1988)] analysis, and prior to Lechmere. [Id.] at 13.]

II.

[Facts]

Turning to the facts of the instant case, the parties stipulated that the Respondent is the builder and developer of Crestwood Condominiums (Crestwood), a 288-unit residential condominium development located in Bristol, Pennsylvania. The Respondent owns the undeveloped common areas and the controlling interest in the condominium association, which, in turn, owns the developed common areas.

No public streets run through Crestwood; the two streets within the project, Leslie Drive and Norwalk Drive, are privately owned by the condominium association. Only one public street borders Crestwood: Oxford Valley Road, a two-lane thoroughfare that runs parallel to the project’s southern border and has a 45-mile-per-hour speed limit. From Oxford Valley Road, automobiles may enter Crestwood one of two ways: (1) at the Leslie Drive entrance (the main entrance); or (2) at the Norwalk Drive entrance.

Crestwood’s model home is located about 225 feet from the intersection of Oxford Valley Road and Leslie Drive. The model home is open 7 days a week from 10 a.m. to 6 p.m.

Construction of Crestwood’s first 50 units was performed by union carpenters employed by a subcontractor. Thereafter, however, the Respondent hired carpenters directly and did not pay them prevailing union wages or benefits.

On April 1, 1990, union representatives engaged in peaceful handbilling on the walkway leading to, and on the sidewalk in front of, the Crestwood model home. The handbill stated:

--This Is An Appeal To The General Public--

LESLIE HOMES, INC.

Employs foreign/immigrant workers at CRESTWOOD, who are paid substantially less than the prevailing wage and benefit standards in the area. LESLIE HOMES, INC. is destroying the fair wages and living standards of area tradesmen who return their earnings to the local economy by purchasing goods, services and housing, and by paying local and federal taxes.

The great AMERICAN dream is fulfilled with the purchase of a home!

Ask Yourself These Important Questions Before You Buy At CRESTWOOD ...

Will LESLIE HOMES, INC. Cut-Rate Pay Policy Result In A Discount In Your Purchase Price?

Does Cut-Rate Craftsmanship Result From Cut-Rate Wages?

Will The Units Be Adequately and Efficiently Heated and Air Conditioned?

Will Cracks Appear In The Walls Immediately?

Are These Apartments Properly Wired Or Will You Be Forever “Blowing A Fuse”?

Are The Entry Doors Strong And Secure?

Is There Hidden Shoddy Work That Could Cost You Money And Grief After You Buy?

EXERCISE CAUTION BEFORE SIGNING AN AGREEMENT OF SALE.

Protect the American Dream--Don’t Buy At Crestwood

THE METROPOLITAN DISTRICT COUNCIL OF CARPENTERS OF PHILADELPHIA AND VICINITY

Thanks You For Your Support

Also on April 1, 1990, the Respondent advised the handbillers that they were on private property and directed them to leave the premises, but they refused. The Respondent summoned the Bristol Township Police, who initially concluded that the handbilling was proper and refused to interfere with it. However, the Respondent’s president then telephoned the Buck’s County District Attorney’s Office. Thereafter, the police advised the union representatives that the district attorney had concluded that they were subject to removal and arrest if they remained on the property.

III

[Analysis]

Applying our access analysis to the facts of this case, we would find that the Union had no reasonable nontrespassory means of communicating its area standards protest to its intended audience. The Union’s message was directed at a diverse population, potential purchasers of Crestwood condominiums, a group which is not readily identifiable and thus could not reasonably be reached away from Crestwood by direct personal contact, telephone, or mail. The Union should not be required to undertake the burden and expense of a public media campaign when there is no reasonable expectation that such a campaign would even reach its intended audience.

The majority contends that the Union possessed reasonable alternative means of communicating its message to potential home buyers because it could have picketed or placed signs on the strip of public property between Oxford Valley Road and Crestwood, and could have attempted to give handbills to motorists leaving Crestwood at the intersection of Leslie Drive and Oxford Valley Road. We find these purported alternatives illusory and wholly inadequate.

The message the Union was attempting to communicate was relatively detailed. The Union sought to give potential purchasers information to guide their decision as to whether they should purchase a home from the Respondent. The Union wanted to inform potential purchasers that the Respondent was paying workers on the project below the area standards and that the Respondent’s conduct adversely affected other area employees, the local economy, and tax revenues. The Union’s handbill emphasized the importance of the home buying decision. The Union advised the potential purchaser to consider seven specific questions before signing an agreement of sale at Crestwood. The handbill concluded with an appeal not to buy at Crestwood and with a statement of the Union’s name.

All this information could not be fully contained on a picket sign or other sign that could be read and understood by motorists traveling at 45 miles per hour along Oxford Valley Road or negotiating the approximately 90-degree turn into Crestwood. A more detailed statement, such as the handbill, was necessary to impart the full message. [27]

The majority’s suggestion that the Union could have distributed handbills to prospective home buyers departing Crestwood on Leslie Drive is equally unavailing. Although there is a stop sign at the Leslie Drive exit onto Oxford Valley Road, motorists stopping there are still on Crestwood property. Thus, handbillers would have to trespass on Crestwood property in order to handbill such motorists. In addition, sunion representatives who step into Leslie Drive at the stop sign to proffer handbills to motorists would subject themselves to the danger of being struck by exiting vehicles, particularly because Leslie Drive has two lanes exiting onto Oxford Valley Road (one for vehicles turning right and one for vehicles turning left). A handbiller approaching the driver-side window of a car in the right-turn lane would risk being struck by a vehicle advancing in the adjacent left-turn lane. Similarly, a handbiller approaching the passenger-side window of a car in the left-turn lane would risk being struck by a vehicle advancing in the adjacent right-turn lane.

Handbilling motorists leaving Crestwood would also be ineffective because, contrary to the majority, home buyers may well have already made their purchase by that time. These individuals may be purchasing a condominium on their first visit or they may be returning to Crestwood after having inspected the project on a prior occasion when no union representative was present. In either case, handbilling such home buyers when they leave Crestwood has little chance of conveying the Union’s message to them at a time when they might still heed it.

The conclusion we would reach is further supported by an examination of the nature and strength of the employer’s property interest versus the importance of the Section 7 right asserted by the Union. The Respondent offers condominium units for sale to members of the public generally. For 8 hours a day, 7 days a week, the Respondent opens to the public the walkway leading to, and the sidewalk in front of, the model home. Especially in view of the peaceful nature of the handbilling and the total absence of evidence of interference with ingress or egress at the model home, the fact that the public is invited onto the premises significantly diminishes the strength of the Respondent’s property interest.

The majority concedes, as it must, that the area standard activity in which the Union engaged is protected by Section 7 of the Act. Indeed, in our Loehmann’s Plaza II dissent, we cited to and quoted from Giant Food Markets, [1978-79 CCH NLRB ¶15,729] 241 NLRB 727 (1979), enf. denied on other grounds [89 LC ¶12,339] 633 F.2d 18 (6th Cir. 1980), as a leading case articulating the protected nature of area standards activity and the crucial role it plays in advancing the interests of represented employees. When the union representatives engaged in that activity here, they were exercising their own Section 7 rights and those of the employees whom they are authorized to represent. In our view, the interest of the Union and its members in publicizing its assertion that the Respondent was undercutting negotiated area standards outweighs the Respondent’s diminished property interest.

IV

[Conclusion]

In sum, we conclude that neither the use of picket signs or other signs along Oxford Valley Road, nor the handbilling of motorists departing Crestwood, constitutes a reasonably effective alternative means for the Union to communicate its message to potential purchasers of Crestwood condominiums. In contrast, the Union’s distribution of handbills on the walkway leading to, and on the sidewalk in front of, the Crestwood model home impinged only modestly on the Respondent’s property rights, because the union representatives were located in an exterior area to which the Respondent invited the public. Accordingly, we would find that the Respondent violated section 8(a)(1) of the Act by refusing to permit the union representatives to engage in peaceful handbilling at this location and by summoning the police to have them removed from the property.