Montgomery Ward & Company, Inc.

National Labor Relations Board - Board Decisions

Oct 8, 1982

265 N.L.R.B. 60 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Montgomery Ward & Company, Inc. and United
Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO, Local 746. Case 16-CA-
8581
October 8, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On October 28, 1980, Administrative Law Judge
Clifford H. Anderson issued the attached Decision
in this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed a brief in support of the Decision.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge, as modified herein, and to adopt his recom-
mended Order.
We agree that the Administrative Law Judge
properly balanced the conflicting statutory and
property rights involved herein and that the Union,
through striking employees of Buddy Schoellkopf,
with whom the Union was engaged in a primary
dispute, had a protected Section 7 right to engage
in consumer boycott handbilling of Buddy's prod-
ucts on Respondent's premises in the absence of ef-
fective alternative means of reaching the public. Se-
attle-First National Bank, 243 NLRB 898 (1979);
Hudgens v. N.L.R.B., 424 U.S. 507 (1976). The
Union had a right to handbill consumers on Re-
spondent's property, and to do so effectively, while
simultaneously accommodating and disturbing as
little as possible Respondent's private property
rights. Seattle-First National Bank, supra. Thus, Re-
spondent's restrictions requiring that the Union
handbill from the curb, driveway entrances, or
anywhere else not on its property substantially di-
luted and restricted that Section 7 right, since, like
picketing, the effectiveness of handbilling depends
on its location. United Steelworkers of America,
AFL-CIO, et al. [Carrier Corp.] v. N.L.R.B., 376
U.S. 492 (1964). We therefore agree with the Ad-
ministrative Law Judge's finding that by not per-
mitting the handbilling to take place on its premises
Respondent interfered with that Section 7 right in
violation of Section 8(a)(1) of the Act. N.L.R.B. v.
Fruit & Vegetable Packers & Warehousemen, Local
760, et al. (Tree Fruits, Inc.), 377 U.S. 58 (1964);
compare Giant Food Markets, Inc., 241 NLRB 727
(1979), enforcement denied 633 F.2d 18 (6th Cir.
1980). However, in reaching these conclusions, we
find it unnecessary to consider, and we do not
265 NLRB No. 8
adopt, the Administrative Law Judge's extensive
analysis and his resultant findings that consumer-di-
rected boycott picketing, area standards picketing,
organizational activity, and primary economic ac-
tivity are Section 7 rights of equal nature and
strength. We also find it unnecessary to consider
his rationale and conclusions concerning the rela-
tionship and impact of Section 8(b)(4) and Section
7 relative to these activities.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Montgomery
Ward & Company, Inc., Tyler, Texas, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
CHAIRMAN VAN DE WATER, concurring:
I agree that Respondent violated Section 8(a)(1)
of the Act by demanding the removal of certain
nonemployees engaged in handbilling on its proper-
ty. However, I must note my colleagues' failure to
consider the impact of the nature of the Section 7
activity involved herein in applying the balancing
test of Babcock & Wilcox.'
In his Decision, the Administrative Law Judge
engages in an extensive analysis of the application
of Babcock & Wilcox to "struck product" handbill-
ing which, as far as I am aware, is an issue never
before considerd by the Board. Yet my colleagues
merely find it unnecessary to consider the Adminis-
trative Law Judge's finding that consumer hand-
billing is a Section 7 right of "equal nature and
strength" with area standards picketing, organiza-
tional activity, and primary economic activity.
Rather, they merely apply the "lack of alternative
means of communication" standard of Babcock &
Wilcox, Hudgens v. N.L.R.B., 2 and Giant Food
Markets, Inc.,3 to a distinctly different form of Sec-
tion 7 activity.
Nevertheless, I agree with the result reached by
my colleagues for several reasons. First, I believe,
contrary to the Administrative Law Judge and my
colleagues, that the rule enunciated in N.L.R.B. v.
Fruit & Vegetable Packers & Warehousemen, Local
760, et al [Tree Fruits, Inc.],4 a case involving con-
sumer picketing, need not enter into this case, since
the conduct engaged in by the Union was not
t N.L.R.B. v. Babcock & Wilcox Co., 351 NLRB 105 (1965).
a 424 U.S. 507 (1976).
3 241 NLRB 727 (1979), enforcement denied 633 F.2d 18 (6th Cir.
1 980).
4 377 U.S. 58 (1964).
60
MONTGOMERY WARD & COMPANY, INC.
shown to constitute picketing.5 Rather, it consisted
merely of consumer handbilling in support of a pri-
mary labor dispute, conduct specifically approved
by Congress in the publicity proviso to Section
8(b)(4) of the Act.6 Second, since handbilling does
not involve groups of individuals "patrolling" in
front of the employer's establishment, such conduct
is not nearly as intrusive and disruptive of a busi-
ness as picketing. Thus, this Section 7 right can, in
many circumstances, be exercised with very little
disturbance of private property rights, especially
when, as here, it is conducted in areas customarily
open to the general public. 7
Finally, the alternatives available to the Union
were virtually nonexistent. In this regard, I note
that, since the Union's conduct involved passing
out handbills rather than utilization of picket signs,
to restrict the Union to conveying its message from
parking lot entrances would render the handbilling
wholly ineffective. Unlike the picketing situation,
where potential customers might gain information
from picket signs as they drove by the pickets, here
only those customers willing and able to stop their
car, open their window, and receive a handbill
would receive the Union's message. Not supris-
ingly, the record reveals that very few customers
did stop and those who did created a traffic
hazard. Utilization of parking lot entrances in hand-
billing cases such as this is even less effective than
it might be in the picketing context.
With respect to other alternatives the Adminis-
trative Law Judge found, and I agree, that use of
the various mass media was not a reasonable alter-
native means of communication. Thus, the Union
here lacked any alternative method of reaching in-
dividuals who might purchase items produced by
s See, e.g., Teamsters Local Union No 688, affiliated with International
Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of Amer-
ica (Levitz Furniture Company of Missouri Inc.), 205 NLRB 1131, 1133
(1973).
6 Sec. 8(bX4XiiXB) states that it is an unfair labor practice for a labor
organization to threaten, coerce, or restrain any person engaged in com-
merce or in an industry affecting commerce, with an object of
(B) forcing or requiring any person to cease using, selling, han-
dling, transporting, or otherwise dealing in the products of any other
producer, processor, or manufacturer, or to cease doing business
with any other person ....
. * * * a
Provided further, That for the purposes of this paragraph (4) only,
nothing contained in such paragraph shall be construed to prohibit
publicity, other than picketing, for the purpose of truthfully advising
the public, including consumers and members of a labor organiza-
tion, that a product or products are produced by an employer with
whom the labor organization has a primary dispute and are distribut-
ed by another employer ....
7That Respondent itself did not consider overly intrusive solicitation
similar to that of the Union here is evidenced by the fact that in the past
it has permitted charitable organizations to solicit contributions in pre-
cisely the same areas where it objected to the Union's handbilling.
Buddy Schoellkopf Products, Inc., with whom it
had a labor dispute.
In sum, the only viable means by which the em-
ployees could exercise their Section 7 right to com-
municate with potential purchasers of their em-
ployer's product was to engage in activity on Re-
spondent's premises. Since the area utilized was
open to the general public and resulted in a mini-
mal, nondisruptive intrusion on Respondent's prop-
erty, the balance in this case must be struck in
favor of the employees' Section 7 rights to engage
in consumer handbilling in support of a primary
labor dispute. Accordingly, I agree with my col-
leagues that Respondent violated Section 8(a)(1) of
the Act by demanding the removal of the employ-
ees so engaged.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge:
This case was heard before me in Tyler, Texas, on June
17, 1980, pursuant to a complaint and notice of hearing
issued on February 1, 1980, by the Regional Director for
Region 16 of the National Labor Relations Board based
upon a charge filed on July 5, 1979, by United Rubber,
Cork, Linoleum and Plastic Workers of America, AFL-
CIO, Local 746 (herein the Charging Party or the
Union), against Montgomery Ward & Company, Inc.
(herein Respondent).
The complaint alleges that Respondent demanded that
employee-agents of the Union cease certain handbilling
on Respondent's premises in violation of Section 8(aX1)
of the National Labor Relations Act (herein the Act).
All parties were given full opportunity to participate
in the hearing, to examine and cross-examine witnesses,
to introduce relevant evidence, to argue orally, and to
file briefs.
Upon the entire record herein, including helpful briefs
from all parties, and from my observation of the wit-
nesses and their demeanor, I make the following:
FINDINGS OF FACTr
I. JURISDICTION
Respondent is an Illinois corporation engaged in the
retail sale of merchandise through retail department
stores, including a store located in Tyler, Texas (herein
the store). During the 12 months immediately preceding
the issuance of the complaint and in the course of its
business operations, Respondent enjoyed a gross volume
of business in excess of SS500,000 and caused goods
valued in excess of S50,000 to be shipped to its store
from outside the State of Texas.
I The facts were essentially not in dispute. Except where noted the
facts are based on the pleadings, the stipulations of the parties, and the
unchallenged testimony of credible witnesses.
61
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II1. LABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The issue is whether or not, in the circumstances
present here, an employer violates the Act when it de-
mands employees of a separate employer cease handbill-
ing activities on its property designed to cause the em-
ployer's customers not to purchase items manufactured
by a separate employer with whom the handbilling em-
ployees have an economic dispute.
B. Events and Circumstances
1. Background
The Union has had at all relevant times from 1,100 to
1,250 members. It has had a contract with but a single
employer. In September 1978 the Union was certified by
the Board as representative of certain employees of
Buddy Schoellkopf Products, Inc., at its facility located
in Tyler, Texas (herein Buddy). In February 19792 the
Union commenced an economic strike against Buddy
which continued through the relevant dates involved
herein. The strike was attended by the arrest at Buddy's
facility of some 160 individuals supporting the strike, in-
cluding several of the Union's counsel. Substantial litiga-
tion and attendant bail expenses were borne by the
Union. 3
Buddy manufactures sporting goods which are sold
under various brand names. Buddy has no retail facilities
of its own and sells its products only at wholesale. Re-
spondent sells Buddy's products at its store although
they represent but a very small portion of its product in-
ventory and the sales of these products constitute a very
small portion of the store's total revenue.
The store is a large single structure on its own city
block. The entire block is Respondent's leasehold proper-
ty. It is located in an area known as the Bergfeld Shop-
ping Center. The structure has several public entrances
and is essentially surrounded by a parking lot and public
sidewalks. Extra parking is provided across the street.
No other enterprises are located on the block. Other
retail stores, including a cafeteria and a grocery store,
are located on separate city blocks in the area.
Tyler, Texas, is a city of some 70,000 persons located
in Smith County with a greater area population of per-
haps 100,000. It is a center of business and commerce in
' Unless hereinafter indicated all dates refer to 1979.
s The Union sought and Respondent opposed my taking judicial notice
of the April 14, 1979, decision of the U.S. District Court for the Eastern
District of Texas in Nash, et al. v. Chandler. er at., 101 LRRM 2342, deal-
ing with the strike at Buddy. I have taken notice of this decision only to
the extent of its factual recitation of arrests during the strike and related
background events. The court's factual findings regarding such matters of
public record are inherently trustworthy and are properly noticed even
though the court's decision may be on appeal and even though Respond-
ent was not a party. I have not taken notice of nor considered any state-
ments or findings of fault with respect to the conduct of any of the par-
ticipants.
east Texas. Tyler has various mass media, including two
newspapers and local radio and television programming.
The Union does not represent and has not sought to
represent employees of Respondent at its store. Insofar as
the record reflects, the store's employees have not been
and are not now represented by a labor organization.
2. The Union's handbilling campaign
In June, the Union determined to augment its strike
against Buddy by distributing handbills at certain area
retail stores that carried Buddy products. Respondent's
store was one of the facilities selected. The Union pre-
pared handbills for distribution at these stores.4
On June 9, as part of the Union's handbilling cam-
paign, four union members who were also striking em-
ployees of Buddy stationed themselves in pairs outside
the two main public entrances to the store soon after the
store opened for business. As customers approached the
store entrances the union agents proffered handbills and
asked that customers read the literature and support the
Union. After an hour and some 20 minutes as the hand-
billers were preparing to take a lunch break, Respond-
ent's security guard, C. B. Douglas, told the handbillers
that there was a company policy that prohibited hand-
billing on store property. 5 He suggested they handbill
from the curb, driveway entrances, or anywhere else not
on store property. He asked them to leave and the hand-
billers left. The conversation concluded without harsh or
threatening words.
After a lunch break the handbillers returned to the fa-
cility and attempted to handbill from the curb sidewalk
and drive areas along the streets and the outside perim-
eter of the parking areas; i.e., off Respondent's leasehold.
The handbilling was unsatisfactory. Few, if any, pedestri-
ans were encountered because customers drove into Re-
spondent's parking lot, parked, and then entered the
store. These customers did not walk to the perimeter of
the lot to receive a handbill. Customers in automobiles
entering the lot rarely stopped at the street or driveway
4The handbills stated:
FOR YOUR INFORMATION
Dear Friends:
The Employees of BUDDY SCHOELLKOPF PRODUCTS COM-
PANY is [sicl on Strike in Tyler, Texas. Please do not buy their
Products sold at this Store. Employees of Buddy Schoellkopf have
been on strike since February 8, 1979, trying to obtain fair Wages,
Working Conditions and Benefits.
Following are items produced at the Tyler Plant:
Life Vest
Boat Cushions
Ski Belts
B. V. Jackets and Vest
Hunting Jackets
These items are produced under Brand Names of RED HEAD,
BLACK SHEEP and BUDDY SCHOELLKOPF.
Thank you
Local 746, URW
Tyler, Texas
The store manager, C. R. West, had learned of the pamphlets, pro-
cured one, and reported the ongoing events to Respondent's legal divi-
sion. The manager then initiated the ejection of the handbillers through
its admitted agent Douglas.
62
MONTGOMERY WARD & COMPANY, INC.
entrances to receive a handbill. When such an event oc-
curred it created an unreasonable traffic safety hazard as
a result of traffic backing up into the street. After a
period of about 30 minutes the handbillers abandoned
their efforts.
On or about June 13, the Union sent the following
letter on the Union's letterhead dated June 12 to Re-
spondent's store manager:
Dear Mr. West:
On Saturday, June 9, 1979, members of URW Local
746 located in Tyler, Texas, who are on strike at
the Buddy Schoellkopf Plant in Tyler appeared at
your store for the purpose of passing out handbills.
These handbills are asking customers not to pur-
chase products made at the Buddy Schoellkopf
plant in Tyler, Texas. They do not seek to stop the
customers from entering your store nor to stop em-
ployees from working or selling any merchandise.
I am informed that you refused to allow the distri-
bution of these handbills. We will again attempt to
pass out handbills and ask for you cooperation. This
is our only effective means of communicating to the
public our labor dispute with the Buddy Schoell-
kopf Company.
I will appreciate your cooperation.
Yours truly,
John Nash, President
Local 746, URW
Respondent did not respond to this letter.
Again on June 16 the Union attempted to handbill at
the store under virtually identical circumstances and
with the identical results as on June 9. Handbilling com-
menced during business hours at the two main entrances
to the store. The handbillers were soon asked to leave
Respondent's property by a security guard and they did
so. Subsequent attempts to handbill on the property pe-
rimeter were unsuccessful as before. Again to the limited
extent it was successful the handbilling created a poten-
tial traffic hazard. As before the offsite handbilling was
soon discontinued. No handbilling was undertaken there-
after.
The trespassory handbilling was peaceful and nondis-
ruptive. No blockage of entrances occurred at any time
nor was there evidence of customer complaints regarding
the handbillers' activities or the handbills. Some custom-
ers who took handbills into the store apparently did not
dispose of them properly, however. A maintenance em-
ployee had occasion to pick up some handbills which
were found on the store counters and in the aisles.
3. Respondent's rule concerning solicitations and
their history of application
Respondent maintains a general policy manual contain-
ing a personnel manual which includes section 4007,
"Distribution of Literature and Solicitation on Company
Time for Non-Company Activities." It states in part:
Only employees of Wards shall be permitted access
to any part of the Company's property not open to
general public. Non-employee representatives may
visit only those parts of the Company premises
open to the general public-public cafeterias, public
washrooms and sales floor. Such persons must con-
duct themselves in a quiet and orderly manner
while on such Company premises; they may not dis-
tribute literature, make speeches, hold meetings, or
disrupt the working time of any employee or the
operation of any department.
Solicitations for charity drives and fund raising
campaigns are to follow the guidelines for solicita-
tion as outlined above. The Company generally sup-
ports one all-out community charity drive. Prior ap-
proval is required for any additional charity drives
held on Company property. Such approval is to be
made by the Retail or Catalog Store Manager,
Catalog House Personal [sic] Manager, Regional
Personnel Director or Corporate Personnel Direc-
tor.
Store Manager West testified that the store receives
frequent requests to solicit funds at the facility entrances
from organizations such as the Salvation Army, Shriners,
Disabled Veterans, etc., and that the store and its com-
petitors regularly grant permission for such solicitation.6
West distinguished the permitted charitable conduct from
the employees' conduct herein. He noted the boycott
message of the handbill "diverts from the charitable or-
ganization purpose" and thus comes "under [Respond-
ent's] general policy prohibiting passing out of written
literature, material."
C. Analysis and Conclusions
1. Test to be applied
This case requires a balancing of conflicting statutory
and property rights. Few additional factual or legal ques-
tions exist. The conduct alleged as a violation of the Act
is not disputed. Respondent demanded that employees
discontinue handbilling and leave its premises. If the em-
ployees, under all the circumstances, were entitled to be
on Respondent's premises, then Respondent in demand-
ing they leave violated Section 8(aXI) of the Act. Giant
Food Markets Inc., 241 NLRB 727 (1979). If employees
were not properly on the premises then Respondent's
conduct was permissible under the Act.
The Union,7 in handbilling Respondent in the manner
described, without consideration of the location of the
conduct, was engaging in activity permitted under the
Act. N.LR.B. v. Fruit & Vegetable Packers & Warehouse-
men, Local 760, et al. [Tree Fruits, Inc.], 377 U.S. 58
(1964), and N.LR.B. v. Servette, Inc., 377 U.S. 46 (1964).
The activity of boycotting a product in this manner is
sometimes referred to as Tree Fruits conduct or picket-
e Union President John Nash also testified to observing charitable so-
licitation and distribution of literature to customers at the store entrances.
West conceded that the Shriner solicitors distributed pamphlets or news-
papers which became litter in the store and had to be picked up.
I Sec. 7 rights accrue to employees, but labor organizations' activities
are regulated under the provisions of Sec. 8(b) of the Act. Here the activ-
ity was conducted both by employees and the Union and, in this context,
the terms are used interchangeably.
63
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing. While no employees of Respondent were involved
in the handbilling, employees of Buddy were and the
Act construes the term "employee" in such situations to
include "members of the working class generally." Giant
Food Markets, Inc., supra at fn. 5, and cases cited therein.
Employees were acting concertedly about a matter con-
cerning their terms and conditions of employment and
were not engaging in conduct otherwise illegal under the
Act. Thus, the conduct herein, without reference to the
critical question of the location of the conduct, was
clearly protected concerted activity sheltered by Section
7 of the Act.
The analysis then takes as its starting point the propo-
sition that, but for the fact that the employees selected
land leased by Respondent,8 the conduct was concerted
and was protected by the Act. The conduct occurred,
however, on Respondent's property. Respondent asserted
its property right in demanding that union agents leave
Respondent's store. One property right is the right of ex-
clusion. Thus, it seems clear that property rights and
statutory rights are in conflict in this case. The Supreme
Court has instructed the Board to accommodate Section
7 rights and property rights "with as little destruction of
one as is consistent with the maintenance of the other."9
The Court in Hudgens gave further instruction:
The locus of that accommodation, however, may
fall at differing points along the spectrum depending
on the nature and strength of the respective § 7
rights and private property rights asserted in any
given context. 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.]
It is appropriate then to analyze first the nature and
strength of the statutory rights asserted by the employees
and second the nature and strength of the property rights
asserted by Respondent herein.' °
2. The Section 7 rights in the instant case
Section 7 gives employees, inter alia, the right to act in
concert for mutual aid and protection. Such activities are
varied and arise in almost endless permutations. I I Board
8 I find for purposes of this case that it makes no difference whether
Respondent's interest in the land was leasehold or fee simple.
9 Hudgens v. N.LR.B., 424 U.S. 507, 521 (1976), citing N.LR.B. v.
Babcock & Wilcox Co., 351 U.S. 105, 112 (1965).
10 The Court established such a balance in N.LR.B. v. Babcock A
Wilcox Ca, supra, where union organizational access was involved. The
Court stated:
[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 dis-
tribution. [351 U.S. at 112.]
In the instant case, the availability of alternative means of communication
to the Union is examined as part of the "nature and strength" of the em-
ployees' statutory rights, and the rules of Respondent concerning hand-
bills are analyzed as part of the treatment of the "nature and strength" of
Respondent's property rights.
'' Since certain conduct illegal under the provisions of Sec. 8(b) of the
Act can render employee activities unprotected, virtually the entire statu-
and court cases discussing conduct which is protected by
Section 7, but which, because it occurs in a trespassory
context, must be balanced against property rights, have
not covered as wide a range of activities. They have
largely been limited to cases involving organizational
rights, such as the right of employees and nonemployees
to enter an employer's property to talk to employees
about unions, and to picketing and/or handbilling activi-
ty where employees seek to bring economic pressure to
bear in an organizational or economic dispute.
The courts and the Board have dealt frequently with
organizational solicitation where the union's intended au-
dience is the employer's employees,' 2 and with econom-
ic picketing where the employee conduct is directed
against the struck employer's operations. "
A separate type of employee activity may be called
consumer-directed activity because it is directed not at
the employees of the employer or the employees of those
who pick up or deliver at its site, but rather exclusively
to the customers of the employer.' 4 Consumer-directed
conduct is also of two separate and distinct types: area
standards and product boycott. Area standards picketing
is directed at customers of an employer and urges that
customers not patronize the employer in any way. Thus,
the conduct attempts to induce a complete cessation of
that employer's sales. The basis of the dispute with the
employer in an area standards campaign is the assertion
that the employer is paying its employees less than the
standard in the area, thereby undermining the benefits of
employees at other employers. Product boycott conduct
is directed at customers of an employer but urges certain
products made by a separate employer with whom the
employees have a dispute. Thus, the dispute with the em-
ployer who is suffering the handbilling is limited in prod-
uct boycott or Tree Fruits situations to the extent that
that employer is carrying products of another employer.
So, too, the goal of the conduct is limited to inducing
customers not to purchase the product(s) made by the
other employer.
The nature and strength of various Section 7 activities
presumably varies with the necessity of the conduct, its
relation to intended purpose, the Act's interpretation and
legislative history, and many other factors such as
danger of enmeshing others in the dispute. The Board is
called upon to make such an initial analysis. While I
have not discovered and the parties have not cited to me
a case involving balancing product boycott or Tree
Fruits conduct, the Board has made such an analysis of
area standards conduct in Giant Food Markets, Inc.,
supra. Because consumer-directed conduct differs from
other types of Section 7 activity, it is useful to consider
tory scheme of Sec. 8 of the Act has been analyzed and applied in case-
by-case determinations of Sec. 7 rights.
"i See, for example, N.LR.B. v. Babcock & Wilcox Co., supra, and
Central Hardware Co. v. N.LR.B., 407 U.S. 539 (1972).
"s See, for example, Hudgens v. N.LR.B., supra, decision on remand
230 NLRB 414 (1977); Frank Visceglia and Vincent Visceglia, t/a Peddle
Buildings, 203 NLRB 265 (1973), enforcement denied 498 F.2d 43 (3d
Cir. 1974); Seattle-First National Bank, 243 NLRB 898 (1979).
14 The conduct must be limited to consumers for, if employees are in-
duced to cease work, the conduct may be found to be illegal under the
Act. See Sec. 8(bX4) and (7) of the Act.
64
MONTGOMERY WARD & COMPANY, INC.
the Board's analysis of area standards picketing before
weighing the nature and strength of product boycott
handbilling as a Section 7 rights.
In Giant Foods, the Board balanced an employer's
property rights against the Section 7 rights involved in
area standards picketing and struck the balance in favor
of Section 7 rights. The Board noted (241 NLRB at 728):
Area standards picketing is engaged in by a union
to protect the employment standards it has success-
fully negotiated in a particular geographic area
from the unfair competitive advantage that would
be enjoyed by an employer whose labor cost pack-
age was less than those of employers subjected to
the area contract standards. Failure to protect these
standards could result in an undermining of wage
and benefit gains in such areas. Therefore, in its at-
tempt to protect the area standards, a union acts not
only in its own interest, but also in the interest of
employees of employers with whom it has negotiat-
ed more beneficial employment standards. It is this
legitimate nature of the union's actions which we
believe makes properly conducted area standards
picketing not only lawful, but affirmatively protect-
ed under Section 7 of the Act. Employees have a
right to protect advancements they have made, and
their union as their representative has a right to
protect their interests.
The Board thus finds area standards picketing to be an
attempt to protect advances made with other employers.
The product boycott activity of the instant case may be
characterized as an attempt by the employees not to pro-
tect but rather to achieve an advance in employment
standards with another employer. The Union here hand-
billed Respondent as part of its campaign to improve the
working conditions of Buddy employees. Thus, consum-
er boycott handbilling and area standards picketing, like
primary economic picketing, are grounded on the at-
tempt by a union to achieve increase and/or to resist re-
ductions in the working conditions of the employees it
represents.
A product boycott is therefore, like area standards and
primary picketing, motivated by a desire to improve or
sustain the lot of represented employees. It differs from
single site primary picketing in two ways, however.
First, a separate location is involved and, second, a dif-
ferent employer is involved. Where a location separate
from the site of the primary dispute is selected as the lo-
cation of Section 7 activity but the employer is the same,
the Board and the courts have had little trouble regard-
ing the Section 7 activity as strong and direct. For exam-
ple, in Hudgens, supra, the Section 7 activity of ware-
house employees in picketing at a separately located
retail outlet of their employer was held to prevail over
property rights.
The Act prohibits most union picketing and handbill-
ing activity directed against an employer other than the
employer with whom the union has its dispute. This is
especially true where the employers are also in different
locations. Consumer-directed conduct, i.e., area standards
picketing and product boycott activity, is, however, per-
mitted activity which may be directed at an employer
other than one with which the union has an organiza-
tional or economic dispute. Thus, the union is not limited
to the employer whose employees it represents. Indeed,
such activity may occur away from the jobsite of such
represented employees. The Board is aware that such
seemingly remote conduct may be perceived as a lesser
type of Section 7 activity. 1 5 In Giant Foods, supra at 728,
the Board noted:
In the instant case, it may be argued that area stand-
ards picketing is not for the benefit of the Employ-
er's employees, but rather for the benefit and pro-
tection of complete strangers to this employment re-
lationship. Therefore, such picketing should not be
allowed on the Employer's premises. However, as
we noted earlier, area standards picketing is a pro-
tected Section 7 right and is for the protection of
"employees" represented by the union. The fact
that the employees whom the picketing is primarily
meant to benefit are not those of picketed employer
is not as important in our view as is that fact that
the employer being picketed is the employer with
whom the union has the dispute. It is this employer
which the Union charges is undermining the liveli-
hood of the represented employees in the area. It
logically follows that the location of the employer's
business is where the Union can reasonably expect
its picketing and handbilling to have the most
impact.
Product boycott activity differs from area standards
picketing under what I will characterize as the Board's
"identity of the disputant" test set forth in Giant Foods.
In area standards picketing the activity is directed at the
employer whose conduct is undermining the benefits of
the employees the union represents. The employer of the
union-represented employees has no dispute with the
Union and can take no action which will end the dispute.
Thus, no conduct is directed at it. In a product boycott
case, as here, the employer against whom the conduct is
directed is not the prime disputant from the Union's per-
spective. The union's conduct in a product boycott is in-
tended to impact not so much on the employer being
handbilled as on the manufacturer of the product-herein
Buddy-the employer with whom the union has its eco-
nomic dispute.'" Thus, product boycott handbilling
seems to have a secondary aspect which, it may be
argued, should render it of lesser weight or strength than
other types of Section 7 conduct. For the reasons herein-
after stated I do not believe this is the case.
s5 See, for example, the suggestion that area standards picketing may
be entitled to less protection than organizational solicitation in the Su-
preme Court's plurality opinion in Sears. Roebuck < Ca v. San Diego
County District Council of Carpenters, 436 U.S. 180 (1978), and the
Board's respectful disagreement in Giant Foods supra at fn. II.
1S Following the "struck" product to the retailer who offers it to the
consumer is necessary if the Union is to appeal to the public for aid in a
dispute with an employer who, like Buddy here, does not sell its products
at retail but limits its sales to others, such as Respondent, for resale. In
many such cases a primary picket line may be ineffective. In the instant
case, the picketing at Buddy met substantial resistance, see discussion,
supra
65
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Congress in drafting the Act and the Board and courts
in interpreting and applying it have recognized that,
while innocent parties should properly be protected from
labor disputes not of their making, a close identification
or alliance between employers may justify treating the
employers as a unit for purposes of considering the pro-
priety of the conduct directed against them. The concept
of the secondary or neutral as an innocent who should
be sheltered from conduct directed against it thus re-
quires scrutiny of the relationship between the employ-
ers.
An employer who offers for sale the products of an-
other-as Respondent here sells the products of Buddy-
is not regarded an ally or twin of the primary employer
when evaluating the propriety of economic action
against the selling employer by a union. Yet, product
boycotts or Tree Fruits picketing has been a traditional
device by which a union "follows the goods" and has
been historically justified by pointing out the "unity of
interest" between the employers involved. 17 The Su-
preme Court has reviewed this historical distinction:
The distinction between picketing a secondary em-
ployer merely to "follow the struck goods," and
picketing designed to result in a generalized loss of
patronage, was well established in the state cases by
1940. The distinction was sometimes justified on the
ground that the secondary employer, who was pre-
sumed to receive a competitive benefit from the pri-
mary employer's nonunion, and hence lower, wage
scales, was in "unity of interest" with the primary
employer, Goldfinger v. Feintuch, 276 N.Y. 281, 286,
11 N.E. 2d 910, 913; Newark Ladder & Bracket Sales
Co. v. Furniture Workers Local 66, 125 N.J. Eq. 99,
4 A. 2d 49; Johnson v. Milk Drivers & Dairy Employ-
ees Union, Local 854, 195 So. 791 (Ct. App. La.),
and sometimes on the ground that picketing restrict-
ed to the primary employer's product is "a primary
boycott against the merchandise." Chiate v. United
Cannery Agricultural Packing & Allied Workers of
America, 2 CCH Lab. Cas. 125, 126 (Cal. Super.
Ct.). See I Teller, Labor Disputes and Collective
Bargaining § 123 (1940). [N.L.R.B. v. Fruit & Vege-
table Packers, Local 760 [Tree Fruits], 377 U.S. at 64,
fn. 7.]
A union's right to appeal to consumers of the struck
product, even though the conduct occurred at the site of
a separate employer who offered the goods for sale, has
been preserved in the proviso language of Section 8(b)(4)
of the Act. This right to follow the product was regard-
ed by Congress as a significant right. The Supreme
Court has noted:
The proviso was the outgrowth of a profound
Senate concern that the unions' freedom to appeal
to the public for support of their case be adequately
" The Supreme Court's plurality opinion in Sears, Roebuck & Co. v.
San Diego County District Council of Carpenters, supra at fn. 42, consid-
ered the relatively recent recognition of area standards picketing as a
Sec. 7 right as a factor tending to make such picketing a less compelling
right when balanced against an employer's property rights.
safeguarded. [N.L.R.B. v. Servette, Inc., 377 U.S. at
55.]
It is clear that the consumer boycott handbilling here
is not directed at the primary disputant, Buddy. While
Respondent has a "unity of interest" with Buddy, it is
not in a traditional sense an ally of Buddy. The Union in
support of its dispute with Buddy could not under the
Act seek to induce Respondent's consumers to forgo
their patronage entirely. It cannot engage in a general
consumer boycott as is permitted in an area standards
dispute. Indeed, were the products of Buddy to consti-
tute a sufficiently large proportion of Respondent's sales,
the handbilling undertaken would as a result significantly
injure Respondent and therefore violate Section 8(b)(4)
of the Act. N.L.R.B. v. Retail Store Employees Union,
Local 1001, Retail Clerks International Assn., AFL-CIO
[Safeco Title Insurance Co.], 447 U.S. 607 (1980). The Act
therefore limits the injury that Respondent may suffer.
I have considered the above factors and, for the rea-
sons hereinafter set forth, I find that consumer-directed
product boycott picketing and area standards picketing
are Section 7 rights of equal nature and strength. I fur-
ther find that consumer-directed product boycott picket-
ing, organizational activity, and primary economic activi-
ty are also Section 7 rights of equal nature and strength.
First, it is clear that the consumer product boycott ac-
tivity herein is conduct designed and intended to im-
prove employees' terms and conditions of employment.
Second, while it is true that the conduct in question is
not directed against the primary disputant, Buddy, or at
its location, Respondent has a "unity of interest" with
Buddy and it is that product nexus which is the focus of
the employee activity. This is a historically sanctioned
traditional activity. Third, the activity in question has a
limited audience and a limited intended result. Accord-
ingly, injury to Respondent resulting therefrom is, at its
worst, quite limited in extent and is again related to Re-
spondent's commercial relationship to Buddy. Fourth,
the conduct is necessary's to gain the support of the
public in a primary dispute with an employer who offers
its product to the public only through intermediaries.
Thus, the activity is engaged in for the purpose of im-
proving employee working conditions. It is directed at a
party with a "unity of interest" with the disputant and
the conduct is limited in nature, matching exactly the
extent of that unity of interest. Finally, the conduct is
traditional, historically sanctioned, and necessary if the
employees are to exercise their important right to bring
their dispute to the attention of the public. For these rea-
sons I believe consumer-directed product boycott hand-
billing should be regarded, along with other forms of
economic and organizational activity, as being Section 7
activity of the highest "nature and strength."
There is a second, independent basis for finding the
conduct herein to be "full strength" Section 7 activity.
This second means of analysis starts with premise that
Ia This analysis does not address the issue of alternative means of en-
gaging in a consumer product boycott, which is discussed, infra. Here the
issue is whether or not a consumer product boycott is necessary at all to
support the Union's efforts against Buddy.
66
MONTGOMERY WARD & COMPANY, INC.
Congress, in creating and amending those sections of the
Act regulating what is commonly known as union recog-
nitional and secondary conduct, has already undertaken
the balancing process invited by the Court. Thus, with
respect to these regulated areas, Congress has spoken by
limiting and in some cases prohibiting certain conduct.
That conduct allowed by Congress in these areas has al-
ready been carefully regulated, and it should not there-
fore be weighed a second time, in effect twice discount-
ing certain conduct permitted by Congress in a limited
form.
Historically, the strike and the boycott have been
labor's key weapons in its economic disputes with em-
ployers. Regulation-judicial and legislative-has been a
matter of historical contention. Intense political debate
and compromise are reflected in the language of statutes
which regulate such conduct. These considerations bore
upon Congress in drafting and amending Section 8(b)(4)
and (7) of the Act and upon the decisions of the Board
and courts in interpreting and applying its provisions.
Courts and legal scholars have commented frequently on
the complexity and difficulty of interpretation of the lan-
guage of these sections of the Act. For better or worse
the development and application of these provisions of
the Act have regulated the type, place, purpose, and au-
dience of picketing, solicitation of support, and other
forms of publicizing trade union disputes. Complex and
difficult as these sections are, they comprise a regulatory
scheme governing the conduct of industrial disputes
which is the envy of other nations.
Congress through these provisions of the Act has lim-
ited the types of solicitation which may be undertaken
by a labor organization under given circumstances. For
example, at the site of a primary dispute, a union may
urge employees of the employer to cease work, it may
urge that deliveries and pickups be halted, and it may ask
purchasers and suppliers to abandon all trade with the
employer. An area standards picket, however, must be
directed only to customers-not employees. A product
boycott must be limited to the specific product of a spe-
cific employer and must be directed only to potential
consumers of that product. Congress has thus considered
and weighed the economic and organizational activities
labor organizations utilize and, to the extent it thought a
given type of activity to be of lesser value, restricted its
scope and potential effect.
In my view, by regulating organizational and econom-
ic activity such as picketing and handbilling under Sec-
tion 8(b)(4) and (7), Congress has balanced conflicting in-
terests and has allowed only certain conduct. This con-
duct has met the tests of the legislative process. In short,
Congress has already undertaken a balance of Section 7
rights and property rights of the type the court has ap-
plied in other areas. Thus, I would find that all organiza-
tional and economic conduct permitted under Section
8(b)(4) and (7) is Section 7 activity of equal nature and
strength because such permissible conduct has Congress'
measured approval. In a particular case, then, I would
proceed to consider the separate factual issues, such as
the existence of alternatives to the questioned conduct,
and to undertake the ultimate balancing of the employ-
ees' Section 7 rights against the employer's property
rights. This is not to say that other forms of Section 7
activity-where the detailed guidance of Congress in its
legislative history is not present-need not be weighed
and balanced. I limit my view to Section 8(bX4) and (7)
of the Act, where Congress examined the conflicting
rights involved in various types of picketing and enacted
the elaborate regulating scheme contained in those provi-
sions.
This approach may be applied to the instant case. Here
the Union through employees of Buddy engaged in ac-
tivity strictly limited in its scope and potential impact.
The conduct was so limited in order not to run afoul of
the provisions of Section 8(b)(4) of the Act. Consistent
with the provisions of the Act, the Union made a public
appeal at the store directed only at Respondent's custom-
ers and seeking only that they not purchase Buddy's
products while shopping at Respondent's store. A broad-
er audience, a broader solicitation, or a broader effect
would have caused the Union's actions to violate the
Act. The Union made its strictly limited appeal because
Congress had determined, in drafting the language of
Section 8(bX4) of the Act, not to allow the Union to do
more. The Union's selection of an arguably less proper
location than Buddy's facility and an arguably less
proper employer as the subject of economic activity as
part of a campaign to aid it in its dispute with Buddy is
paid for by the Union's highly circumscribed right to the
audience it may solicit and the conduct it asks its audi-
ence to engage in.
Congress has thus carefully regulated the various
forms of economic and organizational activity available
to employees. The almost stylized conduct of the em-
ployees herein is an example of such highly regulated
conduct. The Board should acknowledge this process
and treat the congressionally sanctioned conduct of em-
ployees in these areas as of equal weight. Area standards
picketing, product boycotts, permissible organizational
and primary economic 'conduct if valid under Section
8(b)(4) and (7) should all be regarded as generic equiv-
alents with congressional approval' 9 and all should be
found to be Section 7 activities of equal weight.
Even if the Board determines it is always appropriate
to make a case-by-case weighing of each type of eco-
nomic and organizational activity permitted under Sec-
tion 8(b)(4) and (7) of the Act, consideration must be
given to the fact that various types of conduct are differ-
ent in their intended or potential effect. Thus, the poten-
tial or desired harm to the employer at whose situs the
conduct occurs is greatest in primary economic picket-
ing, less in area standards picketing, and least in consum-
er product boycott. In an economic strike a union may
seek to halt the employer's operation entirely, denying it
employees, supplies, the opportunity to make deliveries,
and the patronage of its customers. In area standards
conduct the audience must be limited to customers but
the union may induce them to stop all patronage. In a
product boycott the audience must also be limited to cus-
tomers and the solicitation of customers must be further
19 Again, this analysis is applied only to those modes considered and
regulated in the formulation of Sec. 8(bX4) and (7). Clearly not all con-
duct permitted by the Act is of equal value.
67
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
limited, seeking a boycott only of the products of the
struck employer. The scope of the audience and the
degree of support asked of that audience are important
factors for the Board to consider in weighing the Section
7 rights of employees under varying circumstances. The
less injury the Union seeks to impose on the employer
against whom the activity is directed, the greater weight
or value should be accorded that conduct when weigh-
ing the various factors which make up the relative nature
and strength of a given Section 7 activity.
3. The existence of reasonable substitutes for the
employee conduct herein
Given that the product boycott handbilling undertaken
against Respondent herein is an important Section 7
right, a separate question exists. Must the employees'
Section 7 activity herein have taken place on Respond-
ent's property or did reasonable alternatives exist? Clear-
ly, if an easy, effective, nontrespassory alternative to
onsite handbilling exists, there is far less reason to sustain
the trespass irrespective of the value or strength of the
Section 7 rights involved. Among the nontrespassory al-
ternatives discussed in the cases and/or suggested by Re-
spondent and opposed by the General Counsel on brief
are (a) the use of media and other mass communication
techniques to convey the intended message to Respond-
ent's customers and (b) removing the handbilling activity
to public property on the street and sidewalk areas of
Respondent's store property. The two proposed substi-
tutes will be discussed separately.
(a) Alternatives other than handbilling2 0
The Board and the courts have looked for alternative
means of communication in cases involving a union's
right to enter an employer's premises for purposes of or-
ganizing employees. Since in those cases there is a limit-
ed identifiable class of individuals to be contacted, it is
possible a union may reasonably contact that class by ad-
vertising, telephone, street contacts, etc. Respondent
here suggests the Union could use print and electronic
media, billboard advertising, and other means to convey
its product boycott message to Respondent's customers
and thus obviate its claimed need to trespass on Re-
spondent's property.
In consumer-directed messages, however, the intended
class of potential shoppers is far larger than the class of
employees involved in an organizational situation. Fur-
ther, when the audience is composed of consumers as in
the instant case, the members of the class are not suscep-
tible to identification until they reveal themselves as
shoppers who intend to enter Respondent's facility.
Thus, the inchoate class is the entire area population
until particular members reveal themselves by coming to
the store. The Board found in Scott Hudgens supra, 230
NLRB 414 (1977), that the advertising techniques used
by merchants were not a reasonable alternative means
for employees to communicate with their intended audi-
20 Primary picketing at Buddy is not an alternative under this analysis.
The right in question is the right to engage in a product boycott directed
against Respondent, The issue here is if alternative product boycott tech-
niques were available.
ence concerning an economic strike.21 Even in an orga-
nizational access case the Board found mass media an un-
reasonable means of communication with the intended
audience of employees. Hutzler Brothers Company, 241
NLRB 914 (1979), enforcement denied on other grounds
630 F.2d 1012 (4th Cir. 1980).
Guided by all of the above, I find there was no reason-
able substitute for the employees' efforts to induce a con-
sumer product boycott of Buddy products at Respond-
ent's store.
(b) Handbilling offsite at the property perimeter
The alternative methods of communication discussed
above were rejected based on an abstract analysis that if
attempted they would not be effective. The effectiveness
of handbilling at the property perimeter was tested di-
rectly by the handbillers themselves on two occasions
following their expulsion from Respondent's property.
No abstract determination is necessary. Perimeter hand-
billing was tried and failed.2 2
First, the record convincingly demonstrates and I find
that Respondent's customers drove rather than walked
onto Respondent's property. Thus, no pedestrian traffic
existed at the property perimeter to solicit or handbill.
Second, customers, once having entered the property
and parked in the lot, proceeded directly into the store.
They did not walk from their parking places away from
the store to the perimeter of the property. Thus, custom-
ers were unavailable for perimeter handbilling except as
they entered or left the property at the driveway en-
trances. Third, attempts to handbill drivers in their auto-
mobiles as they entered or left the property were largely
unsuccessful. Customers did not often stop and roll down
their window to converse and receive a handbill. To the
degree success was achieved, the autos that stopped cre-
ated a traffic hazard. Traffic backed up into the street
behind those autos whose drivers stopped their cars in
the driveway to roll down the windows, receive a hand-
bill, and converse with the union members. This was one
reason the employees abandoned the perimeter handbill-
ing. The Board has noted that such hazards render pick-
eting ineffective. Scott Hudgens, supra at 417.
In summary, for the reasons noted above, I find that
employees seeking to communicate with potential pur-
chasers of Buddy products among Respondent's custom-
ers had no effective or reasonable alternative to handbill-
ing on Respondent's property at the places and under
circumstances similar to those undertaken by the employ-
ees herein.
L2 I also find a relevant factor herein the fact that the Union was com-
pletely unable to pay for alternative commercial advertising. But see
union "poverty" rejected as a relevant factor in arbitral deferral in Cro-
atian Fraternal Union of America, 232 NLRB 1010 (1977).
" The use of the terms "success" or "failure" here means the success
or failure of the attempts to communicate the solicitation, not the solicita-
tion's effect. Thus, if employees were able to communicate with custom-
ers they succeeded. Whether the customers joined, opposed. or ignored
the product boycott is immaterial. The employees' Sec. 7 right is in the
asking, not the convincing. At the store entrances the employees had an
audience, at the perimeter they did not.
68
MONTGOMERY WARD & COMPANY, INC.
4. The strength and nature of Respondent's
property right
An employer may put its property to a variety of uses
and as a result create a variety of type of business invi-
tees associated with the selected use. So, too, it may es-
tablish and enforce rules respecting use and access. An
employer's claim to exclude certain classes of persons
from its property is properly considered with these facts
in mind. The Board and the courts have considered a
wide variety of uses. The gamut ranges from the compa-
ny town2 s where all aspects of commercial and residen-
tial activity necessarily occur, to the single employer
whose parking lot is used by employees2 4 or by custom-
ers.2 5 Owners of multiemployer shopping centers,2e
large commercial buildings,2 7 and industrial parks2 8
have broader classes of business invitees because the
varied operations of numerous enterprises are involved.
In each case the practice of the employer in restricting
or allowing the use of its property must be considered in
judging the weight to be affixed to the employer's assert-
ed right to exclude the particular Section 7 activities
from its property.
Respondent offers merchandise for sale in its store to
members of the public generally. During Respondent's
business hours, it holds its parking lots, walkways, and
store entrance areas, as well as public areas of the store,
open to potential customers. Presumably, this is virtually
unlimited license to members of the public to enter, ex-
amine, and purchase merchandise. Inasmuch as Respond-
ent's facility is the only one on its property, no other em-
ployers, their employees, or customers are invited onto
these public areas of the premises save as customers of
Respondent.2 9
The testimony of Respondent's store manager, which I
credit, was that Respondent allows-as does its competi-
tors-charitable solicitation to occur on its property im-
mediately outside its store entrances. I find that-without
apparent exception-Respondent has allowed charitable
solicitation to occur which was identical in time, place,
and manner to the employee conduct in issue here, dif-
fering only in the message and goal of the solicitors.3° I
zS N.LR.B. v. Lake Superior Lumber Corporation, 167 F.2d 147 (6th
Cir. 1948).
24 Central Hardware Cao. v. N.LR.B.. supra; NLR.B. v. Babcock d
Wilcox Co., supra
a2 Hutzler Brothers Company, supra; Sears Roebuck & Ca v. San Diego
County District Council of Corpenters. supra.
Is Hudgens v. N.LR.B.. supra; Giant Food Markets, Inc., supra.
II Seattle-First National Bank supra.
s2 Frank Viseglia and Vincent Visceglia t/a Peddie Buildings, supra.
29 The conduct in issue occurred during business hours at the main
public entrances to the store. Deliveries of freight or nonpublic entrances
were not involved. The time of the conduct makes it unlikely that Re-
spondent's employees, as opposed to customers, would have been ex-
posed to the handbilling.
30 Respondent's rule concerning solicitation to the extent it addresses
the conduct of its own employees in the store is irrelevant. Seattle-First
National Bank supra at fn. 4. The rule as it applies to nonemployees is
ambiguous in its application to areas outside the store. To the extent the
rule purports to prohibit distribution of "literature" on the property, it
applies equally on its face to charitable and noncharitable solicitation and
is thus honored more in the breach rather than the observance. I look to
Respondent's practice, not its unenforced rule.
also find that but for the message of the handbilling em-
ployees, i.e., distribution of a handbill calling for a prod-
uct boycott as opposed to, for example, a Shriner's hand-
bill soliciting charitable contributions, their activities
would have been permitted at the time, in the location,
and in the manner in which they were undertaken, not-
withstanding Respondent's rule, which is arguably to the
contrary.
I therefore find that the handbilling employees would
have been welcome on Respondent's property as custom-
ers. Further, I find they would have been permitted,
consistent with past practice, to solicit support for their
cause and to distribute handbills as they did if their cause
had been charitable or at least not directed against prod-
ucts carried by Respondent. Thus, I find it was not the
presence of the handbillers on the property nor their
conduct which displeased Respondent.3 ' It was their
object, the boycott of Buddy products, which caused
their ejection.
These findings, while not dispositive of the balancing
process, render Respondent's assertions of its property
rights to be of a lesser nature and strength than would
have been the case if all solicitation had been prohibited
on the property. So, too, the invitation of the public onto
the premises as potential customers diminishes Respond-
ent's rights to exclude individuals in that class. An em-
ployer who limits the use of its premises to its own em-
ployees has a more effective claim to excluding the
trespassory handbilling by nonemployees than does an
employer who allows nonemployees to use the areas in
question.
5. Balancing, summary, and conclusions
I have found the Section 7 right of the employees
herein to engage in product boycott handbilling to be an
important and strong right. I have also found that no
reasonable or satisfactory alternatives to handbilling on
the premises exist. Therefore, if the employees are to
engage in other than sham, ineffective attempts to publi-
cize a product boycott directed at Respondent's store
customers, they must be granted access to Respondent's
premises.
I have also found that Respondent holds its premises
open to the public generally. More particularly it allows
solicitation-in some cases including handbilling-at its
store entrances. I have found Respondent's only reason
for excluding the employees involved herein from the
premises was the object of their solicitation-the boycott
of Buddy products by customers shopping in Respond-
ent's store.
The balancing of the conflicting statutory and proper-
ty interests herein must be struck in favor of the employ-
ees' Section 7 rights. This diminishing of the property
rights of Respondent is not undertaken lightly. Here,
however, the employees' Section 7 rights are strong. Al-
ternatives in means or place to avoid trespass do not
exist. To deny the site of the statutory activity is to de-
31 I specifically reject any argument that prevention of in-store litter-
ing was a part of Respondent's motive in excluding the handbillers. Other
solicitations had occasioned similar minor waste disposal problems within
the store but were allowed to continue.
69
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stroy any real chance of success and render continued
activity essentially meaningless.
If the limitation of the Section 7 rights of employees in
this case would require their destruction, such is not the
case with Respondent's property rights. To require Re-
spondent to allow the conduct is not to request it to
breach a uniform policy of exclusion. Respondent main-
tains an open invitation to members of the public to enter
its property during business hours. It has allowed, and
continues to allow without apparent exception, conduct
indistinguishable-save only for the object of that con-
duct-from that it prohibited herein. Thus, the intrusion
required is but a single addition to a practice of making
multiple exception. In this sense the reduction of Re-
spondent's property rights necessary to accommodate the
employees' Section 7 rights herein is slight and is neces-
sary to allow the preservation of significant statutory
rights of employees.
Accordingly, based upon all of the above, and the
record as a whole, I find that the employees were enti-
tled to trespass on Respondent's property under the cir-
cumstances described above. Respondent's demand that
the employees leave the premises was therefore unwar-
ranted and improper. Respondent in so demanding em-
ployees abandon their Section 7 activities has violated
Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE
UPON COMMERCE
The activities of Respondent set forth above, occur-
ring in connection with its operations described above,
have a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
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 demanding that employees leave its Tyler,
Texas, store premises while they were engaging in activi-
ty protected under Section 7 of the Act, Respondent vio-
lated 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.
Upon the foregoing findings of fact, conclusions of
law, and the entire record herein, and pursuant to Sec-
tion 10(c) of the Act, I hereby issue the following rec-
ommended:
ORDER3 2
The Respondent, Montgomery Ward & Company,
Inc., Tyler, Texas, its officers, agents, successors, and as-
signs, shall:
i. Cease and desist from:
(a) Prohibiting representatives of the Union from dis-
tributing handbills as part of protected concerted activity
by demanding that they leave Respondent's premises.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Post at its store in Tyler, Texas, copies of the at-
tached notice marked "Appendix." 33 Copies of said
notice, on forms provided by the Regional Director for
Region 16, after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that said notices are not altered,
defaced, or covered by any other material. Respondent
shall also send a copy or copies of said notice to the
Union.
(b) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
s2 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
Sa In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing before an Administrative Law Judge of
the National Labor Relations Board in which all parties
were accorded an opportunity to call witnesses and to
introduce relevant evidence, the National Labor Rela-
tions Board has found that we violated the National
Labor Relations Act and has ordered us to post this
notice.
WE WILL NOT prohibit representatives of United
Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO, Local 746, from distributing
handbills as part of their protected concerted activi-
ty by demanding that they leave our premises.
70
MONTGOMERY WARD & COMPANY, INC.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them in Section 7
of the National Labor Relations Act, as amended.
MONTGOMERY WARD & COMPANY, INC.
71