Pepsi-Cola Co

National Labor Relations Board - Board Decisions

Jul 20, 1992

307 N.L.R.B. 1378 (N.L.R.B. 1992)

1378
307 NLRB No. 202
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 After the judge issued his decision, the Supreme Court issued its
decision in Lechmere, Inc. v. NLRB, 112 S.Ct. 841 (1992), 139
LRRM 2225. In that case, the Court denied private property access
to nonemployee union agents who sought access for the purpose of
communicating an organizational message to employees. On March
4, 1992, the Board in the present case issued a Notice to Show
Cause to the parties why the allegation that the Respondent violated
Sec. 8(a)(1) of the Act by denying access to its property to non-
employee union organizers should or should not be dismissed.
The General Counsel, in response, filed a motion to withdraw the
outstanding complaints in Cases 2–CA–23626 and 2–CA–23989. The
General Counsel conceded that the Respondent’s employees are not
so isolated as to be beyond the reach of reasonable union efforts to
communicate with them as required by Lechmere.
The Respondent also filed a response to the Notice to Show
Cause. The Respondent argues that the Supreme Court’s decision in
Lechmere mandates that the complaints in Cases 2–CA–23626 and
2–CA–23989 be dismissed. The Respondent contends that there are
no ‘‘unique obstacles’’ preventing nontrespassory methods of com-
munication with employees and, thus, that there is no violation of
the Act under Lechmere.
The Charging Party Union did not respond to the Board’s Notice
to Show Cause.
Accordingly, in the absence of opposition, we grant the General
Counsel’s motion to withdraw the complaints in Cases 2–CA–23626
and 2–CA–23989.
In light of our decision to permit withdrawal, we find it unneces-
sary to pass on the judge’s denial of the Respondent’s motion to dis-
miss the complaint in Case 2–CA–23626.
Pepsi-Cola Company and Soft Drink Workers Local
812, International Brotherhood of Teamsters,
AFL–CIO.1 Cases 2–CA–23127, 2–CA–23626,
and 2–CA–23989
July 20, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On May 15, 1991, Administrative Law Judge Steven
Davis issued the attached decision. The General Coun-
sel and the Charging Party filed exceptions and sup-
porting briefs and the Respondent filed cross-excep-
tions and a supporting brief. The General Counsel filed
an answering brief in response to the Respondent’s ex-
ceptions, and the Respondent filed briefs in opposition
to both the General Counsel’s exceptions and the
Charging Party’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions2 and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Rhonda E. Gottlieb, Esq., for the General Counsel.
Duane C. Aldrich and Diane L. Prucino, Esqs. (Kilpatrick &
Cody, Esqs.), of Atlanta, Georgia, for the Respondent.
Sidney Fox, Esq. (Shapiro, Shiff, Beilly, Rosenberg & Fox,
Esqs.), of New York, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Pursuant to
charges filed by Soft Drink Workers Union Local 812, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO (Union) on October
1, 1988, in Case 2–CA–23127, on May 12, 1989, in Case
2–CA–23626, and on December 5, 1989, in Case 2–CA–
23989, separate complaints were issued on January 7 and
June 8, 1989, and January 9, 1990, respectively, against
Pepsi-Cola Company (Respondent). The complaints were
consolidated for hearing pursuant to Order dated January 18,
1990.
The complaints allege essentially that Respondent:
(a) Distributed a memorandum to its employees
which threatened them with loss of their right to speak
directly with management about certain terms and con-
ditions of employment if they joined the Union, and in-
structed them to inform Respondent if the Union threat-
ened, harassed or interfered with them, and invited and
encouraged them to report to Respondent the identity of
Union card solicitors.
(b) Refused to permit Union representatives to enter
upon its facility for the purpose of communicating with
its employees in connection with an organizing cam-
paign.
(c) Advised Union representatives that they could not
remain on Respondent’s facility for the purpose of com-
municating with its employees in connection with an
organizing campaign, and ordered the Union representa-
tives to leave, and threatened them with arrest if they
did not leave Respondent’s facility. The complaint fur-
ther alleges that the Union has no other reasonable al-
ternative means of communicating with the employees
it seeks to organize other than by access to the Re-
spondent’s facility.
Respondent’s answers denied the material allegations of
the complaints and set forth certain affirmative defenses,
which will be discussed infra.
1379PEPSI-COLA CO.
1 At the hearing, Respondent moved for a protective order direct-
ing that excerpts from its security manual, received as an exhibit,
which contains information relating to the security measures under-
taken to protect its employees and facility, be sealed, and on the
close of the proceeding, returned to Respondent. The General Coun-
sel and the Union do not object to this motion. Respondent’s motion
is granted. Dubuque Packing Co., 287 NLRB 499, 534 fn. 102
(1987).
2 Respondent’s unopposed motion to correct the transcript is grant-
ed. The motion has been attached to Respondent’s brief.
On May 15–17, 1990, a hearing was held before me in
New York City.1 On the entire case, including my observa-
tion of the demeanor of the witnesses and after consideration
of the briefs filed by Respondent and the General Counsel,
I make the following2
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Delaware corporation, having its world
headquarters located in Somers, New York, is engaged in the
marketing of soft drink products. Annually, Respondent pur-
chases and receives at its Somers facility goods and materials
valued in excess of $50,000 directly from suppliers located
outside New York State. Respondent admits, and I find, that
it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
Respondent also admits and I also find that the Union is
a labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
Respondent opened its world headquarters in Somers, New
York, in mid-1987, consolidating operations from several lo-
cations in Westchester County, New York. The headquarters
building comprises 516,000 square feet and is situated in a
rural area on 211 acres. About 1100 employees are employed
at this facility, including 150 to 200 secretaries, about 100
additional clerical employees, and about 12 mailroom work-
ers.
The Somers, facility is bordered by two highways. Route
35 borders the facility on the west, off which two entrances
to Respondent’s property, A and B, are located. Route 100
borders the facility on the north, off which entrance C is lo-
cated. Both highways have speed limits of 55 miles per hour.
Route 35 is a two-lane highway. As one approaches en-
trance A, the northbound lane separates into two lanes, one
being a deceleration lane which leads into Respondent’s fa-
cility. The deceleration lane turns to the right, leading into
Respondent’s driveway. About 15 to 20 feet from the high-
way, that entrance lane widens into two lanes which continue
through Respondent’s facility. There are two exit lanes from
which traffic exits Respondent’s driveway onto Route 35. A
traffic light controls the exit access. A flat, grassy area bor-
ders the entering and exiting driveway lanes, and a grassy
median separates the entrance and exit lanes. The median is
about 20 feet wide at its widest point, where it meets Route
35.
Respondent’s entrance and exit driveways at entrance A
are not totally owned by it. From the intersection of Route
35 to a point 225 feet along the driveway, the traffic lanes
leading to its property, including the median between the
lanes and the grassy border area are public property, owned
by New York City and New York State.
Directly across from entrance A, on the western side of
Route 35, is a vehicle emergency breakdown lane, which is
on public property.
Entrance A is the most popular source of entry into Re-
spondent’s property. During the morning rush hour, nearly
43 percent of all vehicles entering the facility enter through
entrance A.
Entrance B is located about 1000 feet north of entrance A.
Entrance B also intersects with Route 35. A deceleration lane
leads into Respondent’s driveway when traveling north on
Route 35. The single entrance lane widens into two lanes
about 20 feet from Route 35. Vehicles traveling southbound
on Route 35 may turn into entrance B by making a left turn
at the entrance. There are two exit lanes from entrance B
onto Route 35. No traffic signal controls the exit lanes, but
there was evidence that drivers had to stop their vehicles be-
fore entering Route 35 in order to check for traffic. A flat,
grassy area borders the entry and exiting driveway lanes, and
a grassy median separate the entry and exit driveways.
One hundred feet from Route 35 into the entrance and exit
driveways of entrance B, including the median and grassy
border areas, are publicly owned, and are not owned by Re-
spondent.
Directly across from entrance B, on the western side of
Route 35, there is a vehicle emergency breakdown lane,
which is also on public property.
Entrance C is situated on Route 100, located on the north-
ern boundary of Respondent’s property. Vehicles traveling
east on Route 100 turn into the single lane driveway which
widens into two lanes about 20 feet from Route 100. Vehi-
cles traveling west on Route 100 make a left turn into the
entrance. There are two exit lanes onto Route 100 from en-
trance C. Although there is no traffic light controlling this
entrance, there was evidence that vehicles must stop before
entering Route 100 due to traffic.
Bordering the entry and exit driveways at entrance C are
flat, grassy areas. There is also a grassy median about 10 feet
wide, separating the entry and exit driveways. Respondent’s
property begins 16 feet from Route 100. The area between
Route 100 and Respondent’s property line is public land.
A privately owned parking lot is situated directly across
Route 100 from entrance C. The Union rented this area to
station a van which it used during the incidents at issue.
About 28 percent of all vehicles entering the facility dur-
ing the morning rush hour use entrances B and C.
Respondent’s property line is marked on all the entrance
and exit driveways by painted white lines.
Respondent has posted 2-mile-per-hour speed limit signs
on its entrance driveways.
2. Respondent’s restrictions on the use of its property
Respondent has marked its property extensively to indicate
where its boundaries are located. Concrete monuments 2 feet
tall are located at the corners of its property wherever its
property line takes a sharp turn. There are also metal or
wooden stakes with orange painted tops embedded into the
1380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ground at points 150 feet apart along the entire boundary of
its property.
There are also ‘‘posted’’ signs in the wooded area of Re-
spondent’s land. They state: ‘‘POSTED. PRIVATE PROP-
ERTY. HUNTING, FISHING, TRAPPING OR TRES-
PASSING FOR ANY PURPOSE IS STRICTLY FORBID-
DEN. VIOLATORS WILL BE PROSECUTED.’’
Respondent’s facility was designed in order to maintain its
seclusion for the purpose of having a productive, safe envi-
ronment. Its headquarters building is situated 2275 feet from
the nearest driveway entrance. Only those persons having
business on Respondent’s property are permitted entry there-
to. Employees have photo identification cards and employee
stickers are affixed to their vehicles. Business visitors to the
facility are issued passes.
Respondent employs a security guard force around the
clock, which polices its grounds to ensure that no outsiders
enter its property. Its fitness center is for use by employees
only. Spouses may accompany employees to the fitness cen-
ter on weekends but are not permitted to use the facilities.
On occasion, outside organizations, such as Weight Watchers
make presentations to Respondent’s employees in the fitness
center. The softball fields and tennis courts are also for use
by employees only. Nonemployees may watch games on the
playing fields when they are invited by an employee who is
playing. However, in a memo dated in July 1988, relating to
a nonemployee’s use of the softball field, it was noted that
an exception to that policy is the ‘‘express permission grant-
ed to Pepsi-Cola contractors; consultants, etc. to engage in
softball competition with Pepsi employees on the . . . soft-
ball field.’’ Trespassers, including hunters who hunted in the
woods on Respondent’s property have been escorted off the
property, and in the case of the hunters, were arrested by the
police.
Respondent’s cafeteria may be used by its employees and
their invited business guests.
Respondent has a conference center in its headquarters
which consists of various conference rooms. In late October
1988, it decided to experiment with outside use of the con-
ference center. It permitted three organizations to use the
center. The groups, a teachers organization, the U.S. Census
Bureau, and a local board of education, qualified for this pro-
gram because they provided significant community or public
services to the Somers area. In addition, on three occasions,
groups of local school children were invited to listen to Re-
spondent’s employees describe their jobs. In 1990, Respond-
ent canceled this program because of (a) abuses of the pro-
gram by the groups, and (b) the fact that the groups had to
pass through office areas on their way to the conference cen-
ter was viewed as inconsistent with Respondent’s security ef-
forts.
Respondent also sponsors periodic Red Cross blood drives
which take place in the conference center. Two such drives
were held in 1989.
Respondent does not permit its internal mail system to be
used for commercial purposes even by its employees, where,
for example, an employee might send a flyer advertising a
relative’s business. Similarly, it does not permit the distribu-
tion of commercial material on its premises. U.S. mail ad-
dressed to an employee would be delivered to that person.
Private announcements or flyers for commercial activities are
not permitted on its bulletin boards.
Respondent has distributed information concerning a
PepsiCo event—Summerfare—to its employees. Summer Fair
is a cultural event held nearby.
Respondent also distributes to its employees on a daily
basis, a summary of news articles concerning the beverage
industry and the Company. One of its articles presented Re-
spondent’s position concerning the Union’s distribution of
literature.
With respect to information concerning its employees, var-
ious outside organizations, such as the United Way, and
other commercial enterprises, requested lists of the names
and addresses of the employees. Respondent refused these re-
quests on the ground that such information was proprietary.
The personnel files of employees are maintained in the
employee relations department. Supervisors seeking informa-
tion concerning employees must request such information
from the manager of employee relations. He determines what
information is released to the supervisor, based on a ‘‘strict
need to know’’ standard. Requests from outside organizations
for information such as employment verifications, and credit
data are handled by obtaining the employee’s written consent
to the release of such information.
3. The Union’s organizing drive
The Union represents certain employees employed by
PepsiCo, a separate company than Respondent, and it has
collective-bargaining agreements with PepsiCo covering
those employees.
Negotiations were held between PepsiCo and the Union
for a renewal agreement to replace the one which expired on
May 31, 1987. At about the time that the Somers’ facility
opened, negotiations between PepsiCo and the Union had
broken down, and at the time of the hearing, no renewal
agreement had been entered into.
Union Business Agent and Trustee Joseph Vitta testified
that the Union sought to organize the clerical and mainte-
nance employees at the Somers’ facility, and accordingly, on
October 17, 1988, began the first of four visits to that loca-
tion. Union officials and members appeared at the facility on
each occasion. None of them were employees of Respondent.
On October 17, the union delegation met across the high-
way from, entrance C, where a recreation vehicle rented by
the Union was parked in the parking lot, which was also
rented by the Union. The men erected a sign on top of the
vehicle which said: ‘‘Pepsi Employees Organizing Campaign
Headquarters.’’ In preparation for handbilling the vehicles
entering Respondent’s premises, the handbillers were in-
structed to be courteous, stand on opposite sides of the drive-
way leading into the facility, and not block any vehicles en-
tering or leaving the facility.
Handbilling that day began at about 7:30 a.m. and ended
at about 9:15 a.m. The documents distributed included a
union authorization card, and a paper which stated that the
Union sought to organize the Somers’ employees, attempted
to persuade the workers of the benefits of joining the Union,
and promised a continued effort to represent them.
Vitta testified as to the handbilling efforts at entrance C.
He and another union official stood on opposite sides of the
entrance driveway. They presented a leaflet with an extended
arm. If the car stopped or slowed, Vitta walked to it and
gave the occupant a leaflet and asked him to read it. At that
1381PEPSI-COLA CO.
entrance, 10 to 12 percent of all cars entering accepted the
union literature.
Difficulties encountered at that entrance, according to
Vitta, included vehicles entering the facility at a high rate of
speed, and Respondent’s security people or employees stand-
ing directly behind them, waving cars through. Respondent’s
security people told the union agent that they could not go
past a property marker—a wooden stake with an orange top.
The union agents attempted, at times, to walk up the drive-
way, into Respondent’s property, in order to be in an area
where entering vehicles would be able to slow down easier.
On those occasions, Respondent’s security employees told
them to move back to their original position.
Leafletting also occurred at entrances A and B. The same
procedure was used at those entrances, with leafleteers stand-
ing on both sides of the entry driveway. Vitta testified that
entering traffic was heaviest at entrance A, with vehicles en-
tering at a high rate of speed, making a sharp turn into the
driveway. He encountered difficulty in handbilling at that en-
trance, because the cars entered quickly, with one behind the
other. He transferred one handbiller from the entrance A
driveway, and stationed him in the passenger side on the
highway’s deceleration lane. That person, holding a leaflet in
his hand, sought to attempt to have entering vehicles slow
down before they entered the driveway.
Union member Joseph Lower also leafletted at entrance C
that day. He stated that a couple of times, entering vehicles
nearly hit him because of his position on the driveway. In
addition, cars which stopped to receive a leaflet caused vehi-
cles following them to stop, and as a result traffic was
backed up onto the highway.
Vitta testified that Respondent’s security personnel were
present at all three entrances that day.
Vitta saw no one enter or leave the premises on foot.
Union member Michael Mango stated that the entering ve-
hicles were traveling ‘‘pretty fast’’ at entrance A. He en-
countered difficulties including the danger of fast moving ve-
hicles. Mango distributed leaflets to about 15 percent of the
70 to 80 entering vehicles.
John McWilliams, the manager of headquarters employee
relations at Somers, testified that on October 17 he received
inquiries from employees concerning the handbilling. Specifi-
cally, employees complained that the handbilling was dan-
gerous, the solicitors stepped out in front of them as they
tried to walk in, an employee was photographed in his car;
and it was a disruption, generally. In response, Respondent
distributed a memo to its employees from Michael Feiner, its
senior vice president for personnel. Inasmuch as the letter
has been alleged as an unfair labor practice, it is set out here
in full:
I want to apologize to you for any inconvenience
you encountered coming to work this morning. The
group of outsiders who harassed you are from Team-
sters Local 812. Unfortunately, we know them all too
well. They have historically resorted to this type of in-
timidation, which is nothing more than a clumsy at-
tempt to increase the size of their local.
Let me give you the real story behind this morning’s
demonstration. Disregarding the interests of their own
membership, this Teamster local is making a desperate
membership, this Teamster local is making a desperate
attempt to further its own interests in a contract dispute
that has been going on for nearly eighteen months at
PepsiCo in Purchase. You may recall that back in May
1987, Local 812 was totally unable to settle a labor
agreement in Purchase. They resorted to press releases,
picketing PepsiCo Summerfare and even soliciting sup-
port from Mikhail Gorbachev, the President of the So-
viet Union! And in those eighteen months they accom-
plished nothing for the people they supposedly rep-
resent.
Now they’re trying to involve you in that dispute.
They’re not looking out for your interests anymore than
they are serving the interests of the PepsiCo employees.
They want you and your money to finance their cam-
paign at Purchase. I am sure you noticed that among
the flyers they handed out this morning was a small,
seemingly innocent envelope. Well, this envelope is not
innocent at all—it’s an authorization card. It basically
asks you to become a member of the Teamsters Union
and to surrender your right to Speak for yourself.
Don’t sign this card!
You know that we don’t need a union here, espe-
cially this union. All of us have worked hard to make
Pepsi-Cola in Somers a premier employer in West-
chester. Our compensation and benefit programs are
first rate and no union has the insight or the resources
to improve on them. More importantly, we have an
open and supportive work environment here which has
as its foundation the fair and equitable treatment of all
employees. Teamster Local 812 wants you to give them
the right to interfere in that environment, wants you to
let them speak for you.
Let me tell you how they ‘‘spoke’’ for their mem-
bers in Purchase on the issue of Summer Hours. It took
six years for Local 812 to agree to give their members
the Summer Hours Program despite the fact that the
vast majority of the employees wanted the program!
Demonstrations like the one this morning will prob-
ably continue for some time. We will do everything
possible to ensure that you are not harassed or threat-
ened. They have no right to interfere with your entry
into our headquarters. If that happens let us know im-
mediately, and we will get it stopped.
I have asked John McWilliams, Manager of Em-
ployee Relations, to be available to any one of you who
have a question or a concern. You can reach John at
extension 7442.
I’m sure all of us would like to see this disruption
end. The best way to accomplish this is to ignore the
demonstrators and to not sign anything. [Emphasis in
original.]
McWilliams stated that he instructed Respondent’s security
force to leave the handbillers alone as long as they did not
block ingress or egress to the facility, create a safety hazard,
or infringe upon its property.
On October 24, union agents again handbilled entering ve-
hicles in the same manner and for the same period of time
as they had on October 17. They distributed authorization
cards and a leaflet dealing with employees’ rights under the
Act. Security guards warned them not to enter Respondent’s
1382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
property. Vitta testified that at all entrances cars were trav-
eling at too great a speed to slow down sufficiently to re-
ceive the papers. He stated that if a car was traveling slowly
enough to stop and obtain a leaflet, the car immediately be-
hind that one honked its horn, and traffic began to back up
onto the highways. He also stated that there was limited visi-
bility at entrances A and C due to the sharp turns, and the
wooded area at entrance C. About 10 to 12 percent of the
cars accepted leaflets at the three entrances.
On November 14, Union President Anthony Rumore sent
a letter to Respondent’s president, set forth below in relevant
part:
I would like to sit down with you for the purpose
of discussing what can be worked out with reference to
our Union having access to your property in Somers,
New York so that during our Union’s organizational
campaign we may be able to communicate with the em-
ployees.
As you know, we have attempted to communicate
with the employees as they come to work, but it has
turned out not to be practical. We have attempted to
find alternate means of communicating the Union’s
message to the employees, but we find that there are
no alternate means of communication.
On November 18, Respondent’s official Feiner replied to
the letter, in relevant part, as follows:
We believe that granting your request for access to our
property for the reasons you have described would be
inappropriate and would disrupt our operations. Quite
frankly, we are somewhat puzzled by your request for
access since you currently have the same access to our
employees that has traditionally been available to
unions attempting to organize employees. In any event,
the access you are requesting would, in our view, con-
stitute a severe intrusion on the rights of our employees
to perform their jobs without being distracted or inter-
rupted.
December was ‘‘Pepsi Family Christmas Day,’’ an event
in which all of Respondent’s employees employed at Somers
were invited to bring their families to the facility to partici-
pate in various holiday activities. Invitations and parking
passes were issued to employees. About 5000 people visited
the premises that day.
Also present were union agents, some of whom were
dressed in Santa Claus outfits. They distributed a booklet de-
scribing the Teamsters Union which contained an authoriza-
tion card, information concerning the benefits of the Union,
and a cartoon related to officials of the Company.
There was great confusion at the driveways that day. Vehi-
cles entering the facility apparently believed that the Santa
Clauses were Respondent’s representatives, and asked ques-
tions of them concerning parking and invitations. Traffic was
extensively backed up onto the highways as a result of this
activity. Security personnel waved cars into the entrances.
The union agents leafletted for about 2-1/2 hours in the same
manner as before. Literature was given to about 50 percent
of the vehicles entering the premises.
On May 1, 1989, Union President Rumore wrote to Re-
spondent’s official, Feiner, which stated in relevant part:
We still have not been able to gain access to your
premises in order to discuss with your employees why
we think they should join [the Union].
In order for Local 812 to transmit its message to
your employees, we request that you furnish to us the
names and addresses of your employees. This is the
only feasible way that we have to get in touch with
your employees other than to have access to your prem-
ises.
On May 5, Feiner replied, denying the Union’s request for
the names and addresses of Respondent’s employees. He
stated that ‘‘our overriding concern is the legitimate expecta-
tion of our employees to be protected from unwarranted in-
vasions of their privacy. Complying with your request would
evidence a blatant disregard of our employees’ privacy
rights.’’
Respondent’s attorney, Duane Aldrich, testified that on
June 1, 1989, he met with Union Attorney Sidney Fox, and
Union President Rumore at the Union’s office to discuss re-
sumption of collective-bargaining negotiations between the
Union and PepsiCo. Aldrich stated that he told Fox and
Rumore that the Employer sought to reach agreement and
settle the matter. According to Aldrich, Rumore replied that
‘‘if we could make real progress in the Purchase negotiations
. . . [we] would leave Summerfare alone and would leave
Somers alone.’’ Fox interrupted Rumore, and Rumore went
on: ‘‘No, I mean it, Sidney. If we can get this done then
we’ll take the vehicle out of Somers and we’ll leave Somers
alone.’’
Fox testified that he recalled a meeting with Respondent’s
attorney at the Union’s office, but he did not recall the de-
tails of that meeting. Rumore did not testify concerning this
matter.
On November 9, union agents distributed handbills at Re-
spondent seeking support for its strike against Pepsi Cola
Bottling Company in Purchase, New York. That company is
a franchisee unrelated to Respondent.
Union Official Vitta testified that on the morning of No-
vember 30, 1989, he and other union agents visited entrance
C at the Somers facility. The weather that morning was cold,
with much frost and poor visibility. They decided to move
further into the driveway where the handbilling would be
done in a safer manner. The area that they went to was the
intersection of driveways leading from entrances B and C,
having stop signs at three of the four corners. The intersec-
tion was about 500 feet into Respondent’s property from en-
trance C.
When the vehicles approached the stop signs the union
agents distributed leaflets, including one previously handed
out on December 21, 1988. After 15 or 20 minutes of
leafletting, they were told by a security guard that they were
on private property and had to leave. Union Official Vitta
protested that the area they previously leafletted in was un-
safe. Another guard arrived, told them they were trespassing,
and warned that if they did not leave, the police would be
called. She suggested that they conduct their activity at en-
trance C. They then left without conducting further
leafletting because they believed that it was too dangerous to
do so. The agents distributed about 80 leaflets in the 45 min-
utes they were present on Respondent’s property.
1383PEPSI-COLA CO.
Employee Relations Manager McWilliams testified that he
told Respondent’s security force to watch the van and advise
him of any activity related to the van, such as when it began
and ended. They were not told to put the van under surveil-
lance—only to observe it in their regular patrol.
The Union’s van was removed from the lot opposite en-
trance C in the summer of 1989.
4. The Union’s means of communicating
with employees
The Union claims that handbilling at the Respondent’s en-
trances is unsafe because of the excessive speed of vehicles
entering Respondent’s property. Union member Joseph
Lower testified that on October 17, 1988, he estimated the
speed of such vehicles entering entrance C at between 35 and
40 miles per hour. In contrast, Respondent’s officials stated
that the entry speed is 15 to 20 miles per hour at all en-
trances.
A radar speed study performed by Respondent in the
morning rush hours in April 1990 showed that the average
speed of vehicles entering entrances A, B and C, was 19.17,
16.36, and 17.40 miles per hour, respectively.
Union Official Vitta testified that the Union did not hand-
bill during the afternoon when employees left work at the
end of the day because it was his experience that employees
leaving work were anxious to get home and did not wish to
be ‘‘bothered’’ by handbillers. He also stated that he was
concerned that handbilling in the evening would be unsafe
because the handbillers might block the drivers’ sight when
they sought to enter the highway.
With respect to motor vehicle records, Kathleen Ward, Re-
spondent’s security supervisor, testified that she made per-
sonal visits to the Department of Motor Vehicles in New
York, Connecticut, and New Jersey, requesting the names
and addresses of individuals whose license plate numbers she
supplied to those agencies. She paid a fee of $5 per number
in New York, and 75 cents in Connecticut and received the
information requested.
B. Analysis and Conclusions
1. The letter to employees
The complaint alleges that the Feiner memorandum of Oc-
tober 17 violated Section 8(a)(1) of the Act because it (a)
threatened Respondent’s employees with loss of their right to
speak directly with management about their wages, hours,
and other terms and conditions of employment if they should
join the Union, and (b) instructed employees to inform Re-
spondent if the Union threatened, harassed, or interfered with
them, or otherwise invited and encouraged employees to re-
port to Respondent the identity of union card solicitors.
The text of the memorandum is set out in full, supra. The
allegedly offensive parts of the letter are as follows:
[The] authorization card . . . asks you to become a
member of the Teamsters Union and to surrender your
right to speak for yourself.
More importantly, we have an open and supportive
work environment here which has as its foundation the
fair and equitable treatment of all employees. Teamster
Local 812 wants you to give them the right to interfere
in that environment, wants you to let them speak for
you.
Demonstrations like the one this morning will prob-
ably continue for some time. We will do everything
possible to ensure that you are not harassed or threat-
ened. They have no right to interfere with your entry
into our headquarters. If that happens let us know im-
mediately, and we will get it stopped.
I have asked John McWilliams, Manager of Em-
ployee Relations, to be available to any one of you who
have a question or concern. You can reach John at ex-
tension 7442.
With respect to the complaint allegation that Respondent
threatened its employees with loss of their right to speak di-
rectly with management if they should join the Union, I find
that Feiner’s statement that by selecting the Union the em-
ployee surrenders his right to speak for himself does not vio-
late the Act.
In Tri-Cast, Inc., 274 NLRB 377 (1985), the Board con-
sidered an employer’s statement that if a union organizes the
shop, the employer’s relationship with its employees would
change—that their previously informal, person-to-person
dealings would become different, and that matters would be
handled by the book, with a stranger, and it would not be
able to handle personal requests as it had before. In finding
that those statements did not constitute objectionable election
conduct, the Board stated:
The Employer’s statement . . . simply explicated one
of the changes which occur between employers and em-
ployees when a statutory representative is selected.
There is no threat, either explicit or implicit, in a state-
ment which explains to employees that, when they se-
lect a union to represent them, the relationship that ex-
isted between the employees and the employer will not
be as before.
In Pembrook Management, 296 NLRB 1226 (1989), the
Board, citing Tri-Cast, found that an employer’s statements
that employees would have to go to a shop steward, and not
to the employer, with job related matters, was not an unlaw-
ful threat. Citing Tri-Cast, the Board held that the statements
imparted a ‘‘mere fact of industrial life’’ and were not coer-
cive threats. Statements that employees would be giving up
their right to speak for themselves have been found to be
nonobjectionable. John Galbreath & Co., 288 NLRB 876
(1988); General Electric Co., 255 NLRB 673, 687–688
(1981).
I accordingly find and conclude that Respondent’s state-
ment did not violate the Act.
With respect to the complaint allegation that Respondent
instructed its employees to inform it if the Union threatened
them, or otherwise invited and encouraged employees to re-
port the identity of union card solicitors, I find no support
for this allegation in the Feiner memorandum.
The memo dealt with the union ‘‘demonstration’’ on Octo-
ber 17—the first day of handbilling of employee vehicles as
they entered the premises. Employees had reported their be-
lief that the manner in which the handbilling was performed
was not safe. The memo advised employees that Respondent
would do all it could to prevent harassment or threats to em-
ployees, and that the Union had no right to interfere with
1384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
their entry in the premises. Respondent also advised them
that if any of these actions occurred it should be informed
immediately.
Respondent’s memo was issued on the first day of the
Union’s handbilling activity, and clearly referred to the
handbilling. The General Counsel’s reliance on Colony Print-
ing & Labeling, 249 NLRB 223 (1980), and Bay State Am-
bulance Rental, 280 NLRB 1079, 1083 (1986), is misplaced.
Those cases involved statements by the employers that they
should be informed if anyone caused employees trouble at
work or pressured them to join a union. Here, in contrast,
Feiner’s memo did not relate Respondent’s efforts to protect
employees against threats or harassment with the Union’s le-
gitimate attempts to have employees join the Union. Rather,
the memo addressed the ‘‘demonstration’’—the handbilling
activity in which employees’ cars were approached.
Respondent’s advice to its employees that it would protect
any interference with their Section 7 rights could not and
does not constitute a violation of the Act.
2. Respondent’s motion to dismiss
On July 5, 1989, prior to the opening of the hearing, Re-
spondent filed a motion to dismiss Case 2–CA–23626, on the
ground that certain allegations set forth therein differ from
and are unrelated to the allegations in the charge filed in that
case. Another ground stated by Respondent was that the
General Counsel’s response to the motion was untimely.
Thereafter, papers were filed in opposition by the General
Counsel, Respondent filed a reply brief, and the General
Counsel filed a response. On March 7, 1990, Associate Chief
Administrative Law Judge Edwin H. Bennett denied the mo-
tion to dismiss. He held that the motion could not be granted,
absent a full record. He also held that the General Counsel’s
response was timely filed.
At the hearing, Respondent renewed its motion to dismiss,
as to which I reserved decision.
The procedural history of this litigation must be reviewed
in order to properly consider the motion.
On November 30, 1988, the Union filed a charge in Case
2–CA–23184, which alleged that on November 18, 1988, Re-
spondent denied the Union’s request for access to its prop-
erty. On February 2, 1989, the charge was dismissed on its
merits, essentially that reasonable alternative means of com-
municating with employees were available. The Union ap-
pealed the dismissal, and the Office of Appeals remanded the
matter to the Regional Director. Thereafter, on June 13,
1989, the Union requested withdrawal of the charge, and the
Office of Appeals approved the withdrawal on June 14,
1989.
On May 12, 1989, the Union filed a charge in Case 2–
CA–23626, which alleged that the Respondent violated the
Act in early May 1989 by refusing to provide the Union with
a list of the names and addresses of its employees at its
Somers facility. The charge also alleged that the Union was
organizing the employees and needed the names and address-
es so that it could transmit its message to them, and to en-
able them to ‘‘avail themselves of their rights under Section
7 of the Act.’’
A complaint was issued on June 8, 1989, in Case 2–CA–
23626. The complaint alleged that Respondent violated the
Act by denying the Union access to its property on Novem-
ber 18, 1988, for the purpose of communicating with its em-
ployees in connection with the organizing campaign. The
complaint also alleged that the Union had no other alter-
native means of communicating with the employees other
than by access to Respondent’s facility.
Thus, the complaint allegation concerning the denial of ac-
cess in November 1988 was identical to the allegation con-
tained in the charge which had been dismissed upon its mer-
its in Case 2–CA–23184. The complaint did not include an
allegation concerning the alleged failure to provide the
names and addresses of the employees, which was the only
substantive allegation in the charge filed in Case 2–CA–
23626, on which the complaint was issued.
On June 19, 1989, Respondent filed its answer to the com-
plaint, in which it alleged, as an affirmative defense, that the
complaint exceeded the scope of the charge filed. Thereafter,
by motion dated July 5, 1989, Respondent moved to dismiss
the complaint on the ground that the allegations in the com-
plaint involving Respondent’s alleged refusal to provide ac-
cess to its property in November 1988 were unrelated to the
allegations in the charge in that case, which alleged only Re-
spondent’s refusal to provide a list of names and addresses
of employees in early May 1989.
On July 5, the same day that Respondent’s motion to dis-
miss was sent, the charge in Case 2–CA–23626 was amend-
ed to state that in early May 1989, Respondent refused to
grant to the Union ‘‘access to its premises and facilities
and/or access to the names and addresses of the employees.’’
The charge further stated, inter alia, that the Union needs ac-
cess to the property and/or names and addresses of its em-
ployees so that the Union may be able to transmit its mes-
sage to them. The complaint was not amended to conform
to the amendment of the charge.
The General Counsel filed a response to the motion to dis-
miss, Respondent filed a reply brief, and the General Counsel
filed another response. As set forth above, on March 7, 1990,
Associate Chief Administrative Law Judge Edwin Bennett
issued an Order Denying Motion. In denying the motion,
Judge Bennett noted that the amended charge could not ‘‘res-
urrect the earlier timebarred and dismissed charge if indeed
the only refusal [to grant access] occurred in November,
1988.’’ He noted, however, that the amended charge alleges
that refusals of access occurred in early May 1989. Judge
Bennett further noted that the motion could only be resolved
after a full record had been made.
On December 5, 1989, the Union filed a charge in Case
2–CA–23989, and a complaint was issued on January 9,
1990, which alleged that on about November 30, 1989, Re-
spondent denied access to the Union to its property.
Respondent moves to dismiss the complaint in Case 2–
CA–26326 on the grounds that the charge in that case is un-
related to the complaint, and is based on an untimely filed
charge. The General Counsel argues that the complaint alle-
gations are factually and legally related to the charge and
amended charge in that case.
The complaint in Case 2–CA–23626 alleges Respondent’s
refusal to provide access to its property on November 18,
1988. That was the identical language set forth in the charge
in Case 2–CA–23184, which had been dismissed in February
1989.
Respondent alleges that the access allegation in the com-
plaint constitutes an improper attempt to reinstate the dis-
missed charge in Case 2–CA–23184. In Ducane Heating
1385PEPSI-COLA CO.
Corp., 273 NLRB 1389 (1985), the Board held that a dis-
missed charge could not be reinstated outside the 10(b) pe-
riod. In that case, the Board had dismissed a charge con-
cerning the suspension of an employee. Later, following the
filing of a charge concerning the discharge of that employee,
the acting Regional Director revoked the dismissal of the
suspension charge and issued a complaint, consolidating the
suspension and discharge allegations. The Board stated that
it would not permit the reinstatement of the charge alleging
the suspension of the employee 10 months after the suspen-
sion. The Board noted that it need not discuss whether an-
other pending charge would have supported the suspension
charge under a ‘‘closely related’’ theory.
The General Counsel argues that the amendment to the
charge in Case 2–CA–23626 made on July 5, 1989, cures
any defect in the complaint. That amendment, however,
states only that in early May 1989 Respondent refused to
grant access to its property and to a list of names and ad-
dresses. It does not address the operative time in the com-
plaint, November 1988. Moreover, the charge was not
amended within 6 months of the alleged violations, Novem-
ber 1988. The only evidence of any alleged unlawful activity
in May 1989 is the Union’s request for, and Respondent’s
refusal, to provide a list of names and addresses of its em-
ployees. There is no requirement that it do so, and in any
event, that allegation is not before me. The amended charge
fails, by virtue of Section 10(b) of the Act, in its attempt to
reinstate the dismissed charge which dealt with access to
property.
The General Counsel argues, however, that Redd-I, Inc.,
290 NLRB 1115 (1988), supports its theory inasmuch as the
complaint allegations are factually and legally related to the
allegations in the underlying charge. Redd-I distinguished
Ducane on the ground that Ducane involved an attempt to
reinstate the ‘‘dead allegations themselves without reference
to any other pending timely charge.’’ Id. Redd-I, however,
involved an attempt to add to a complaint, allegations closely
related to a pending charge. The Board in Redd-I noted that
the question as to whether certain untimely allegations can
be added to a complaint as closely related is separate from
a decision on whether a dismissed charge containing the un-
timely allegations can be reinstated outside the 10(b) period.
Therefore the first question which must be answered is
whether the allegations of the dismissed charge were improp-
erly reinstated by their inclusion in the complaint. I do not
believe that they were.
If a charge was filed and served within 6 months after the
violations alleged in the charge, the complaint, although
issued after the 6 months, may allege violations not alleged
in the charge if they are closely related to the violations stat-
ed in the charge, and occurred within 6 months before the
filing of the charge. NLRB v. Union Coil Co., 201 F.2d 484,
491 (2d Cir. 1982). Here, the complaint which issued in Case
2–CA–23626 alleged violations (a refusal to provide access
to Respondent’s facility on November 18, 1988) not alleged
in the charge in that case. The alleged violation occurred on
November 18, 1988, and therefore its inclusion in the com-
plaint was timely inasmuch as it allegedly occurred within 6
months of the charge filed on May 12, 1989, in Case 2–CA–
23626. The question remains as to whether the violations in
the complaint are closely related to those in the charge be-
fore us.
The facts establish that the complaint allegation of a re-
fusal to provide access to Respondent’s plant was included
as an attempt, under Redd-I, to add the dismissed allegations
to a pending, related charge. As set forth in the facts, above,
the Union first leafletted at Respondent’s premises in Octo-
ber 1988. By letter dated November 14, the Union requested
access to Respondent’s premises, which was refused. The
Union thereupon filed the charge in Case 2–CA–23184,
which alleged Respondent’s refusal to grant it access to its
property, in furtherance of the Union’s organizational cam-
paign. On February 2, 1989, the Regional Office dismissed
the charge on the ground that the Union had reasonable alter-
native means of communicating with employees, namely two
of the three entrances to Respondent’s property. On February
22, the Union appealed the dismissal of the charge. On May
1, while the appeal was pending, the Union wrote to Re-
spondent requesting that it furnish it with the names and ad-
dresses of its employees, which was refused. On May 12, the
Union filed the charge in Case 2–CA–23626, alleging the re-
fusal to supply the names and addresses of its employees. On
June 8, a complaint was issued alleging Respondent’s denial
of access to its property in connection with an organizing
campaign, and also alleged that the Union has no other rea-
sonable alternative means of communicating with the em-
ployees. On June 14, the Union withdrew its appeal in Case
2–CA–23184.
In determining whether the complaint allegations are
closely related to the allegations in the charge, Redd-I has re-
quired that certain factors be examined: (a) whether the oth-
erwise untimely allegations are of the same class as the vio-
lations alleged in the pending timely charge; (b) whether the
otherwise untimely allegations arise from the same factual
situation or sequence of events as the allegations in the pend-
ing timely charge; and (c) whether a respondent would raise
the same or similar defenses to both allegations.
Applying the Redd-I analysis to this case, the complaint
allegation involving the refusal to provide access to the facil-
ity and the allegation in the charge involving a refusal to
supply the names and addresses of employees are of the
same class because they involve alleged limitations upon the
Union’s organizational activities in violation of Section
8(a)(1) of the Act.
It is clear that the allegations in the complaint arose from
the same factual situation and sequence of events alleged in
the pending timely charge. Thus, as set forth above, the orga-
nizing drive prompted the requests involved above, namely
the request for access and the request for the names and ad-
dresses of employees. The Union sought access to Respond-
ent’s employees for the purposes of its organizing drive. Al-
though the two requests were 6 months apart, they were still
part of the same campaign, which although sporadic, was on-
going. Moreover, the Union requested access to Respond-
ent’s facility in November 1988 because, according to its let-
ter to Respondent, it was of the opinion that other means of
communicating with employees were impractical. Later, in
May 1989, when the Union requested the names and address-
es of employees, it asserted that such information was the
only feasible way to communicate with the workers, aside
from access to the facility. Respondent’s conduct is directed
at the same object, to prevent the Union from securing ac-
cess to its employees by means of its facility or their names
and addresses. Roslyn Gardens Tenants Corp., 294 NLRB
1386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
506 (1989). Accordingly, the same factual situation and se-
quence of events gave rise to the allegations in the charge
and complaint.
A reasonable respondent would have preserved evidence
as to the allegations set forth in the complaint even though
they had been dismissed in Case 2–CA–23184. The com-
plaint was issued in Case 2–CA–23626 at a time when the
appeal of the dismissal of the charge in Case 2–CA–23184
was still pending. Thus, the complaint was issued on June 8,
1989, and the appeal was withdrawn on June 11. Thus, Re-
spondent was on notice, at all times through June 8 that the
Union’s appeal of the dismissal may have been granted, and
accordingly would have preserved evidence of those allega-
tions.
I therefore find and conclude that the complaint allegation
involving the refusal to grant access to Respondent’s facility
is closely related to the allegations concerning the refusal to
provide a list of names and addresses of employees in the
timely charge.
I accordingly deny the Respondent’s motion to dismiss the
complaint in Case 2–CA–23626.
3. The Union’s right of access
Respondent’s answer in Case 2–CA–23626 admits that
since November 18 1988, it has refused to permit union rep-
resentatives to enter its facility for the purpose of commu-
nicating with Respondent’s employees in connection with an
organizing campaign.
The Board’s analysis in Jean Country, 291 NLRB 11
(1988), controls this case, involving a Union’s access to pri-
vate property. In that case, the Board established a balancing
test whereby the relative strengths of the Section 7 right of
the union is compared to the employer’s private property
right. The availability of reasonably effective alternative
means of communication must also be considered.
With respect to Respondent’s conduct, its facility, consti-
tuting its world headquarters, is located on private property,
which it owns. It also owns the parking lot located entirely
on its premises. The facility, which is not open to the public,
is a self-contained unit with no other enterprises within its
borders. Respondent has taken extensive measures to ensure
that persons who are not business invitees are not permitted
onto its property. I accordingly find that Respondent’s prop-
erty right is quite substantial. There is evidence that on three
occasions Respondent permitted outside groups to use its
conference center, on a basis of one group per month, and
that that use of its conference center has been discontinued.
There is further evidence that three groups of students were
offered a career day presentation by Respondent. Further,
there have been periodic blood drives by the Red Cross. The
limited nature of these groups and activities does not dimin-
ish the strength of Respondent’s property right. Sentry Mar-
kets, 296 NLRB 40 (1989).
The Union’s Section 7 right consisting of its organizing of
Respondent’s employees, and in handbilling vehicles in pur-
suit of this object is strong. In its answer in Case 2–CA–
23626, Respondent admitted that since about October 1988
the Union has conducted an organizing campaign among cer-
tain of its employees. However, Respondent adduced evi-
dence at the hearing in order to prove that the Union was
not interested in organizing the employees of Respondent,
but rather engaged in certain conduct in order to put pressure
on parent PepsiCo to conclude collective-bargaining negotia-
tions that had until then not been successful. The two are not
mutually exclusive. The fact that the Union may have been
interested in successfully concluding the negotiations does
not mean that it was not interested in organizing certain em-
ployees of Respondent. The Union undertook its organizing
campaign in the standard fashion by leafletting employees,
distributing authorization cards and handbills urging employ-
ees to join its ranks. The fact that some of the leaflets may
have concerned the Union’s dispute with PepsiCo, or may
have been used months before, does not mean that the Union
did not also have an object of organizing certain of Respond-
ent’s employees. Union Official Rumore’s statement that the
Union would leave Somers alone if progress were achieved
in the collective-bargaining negotiations with PepsiCo, does
not prove that the Union had no organizational purpose in
conducting its activities at Somers.
Accordingly, ‘‘[t]he right to organize is at the very core
of the purpose for which the NLRB was enacted. . . . [T]he
interests being protected . . . are not those of the [non-
employee union] organizers but of the employees located on
the employer’s property.’’ Sears, Roebuck & Co. v. San
Diego County District Council of Carpenters, 436 U.S. 180,
206 fn. 42 (1978), citing NLRB v. Babcock & Wilcox Co.,
351 U.S. 105 (1956). The only intrusion upon Respondent’s
property occurred on November 30, 1989, when union offi-
cials stood at the intersection of roads leading from entrances
B and C, and leafletted the cars as they stopped at the stop
signs which controlled that intersection. There was no evi-
dence that this activity interfered with the vehicles’ progress
further into the Respondent’s premises, other than the brief
time it took to handbill the cars. I accordingly find that the
Union’s Section 7 right is strong, and the manner in which
the Union engaged in its conduct does not diminish the
strength of the Section 7 right. It should be noted that the
General Counsel is not seeking an order requiring that Re-
spondent cease and desist from prohibiting entry onto its
property for the purpose of handbilling at the intersection
discussed above. Rather, the General Counsel seeks an order
permitting handbilling in Respondent’s parking lots, where
such handbilling had never been attempted.
With respect to the Union’s alternative means of commu-
nicating with Respondent’s employees, the Union handbilled
on public property at the entrances to Respondent’s facility.
As set forth above, deceleration lanes at entrances B and C
onto Respondent’s property from Route 35 lead onto drive-
ways into Respondent’s facility. Public property continues
from the highway to a point along Respondent’s driveway.
Thus, at entrance A, the first 25 feet from the highway to
Respondent’s property line along its driveway constitutes
public property. Entrance B consists of a 100-foot public
area from the highway to Respondent’s property line along
its driveway. Entrance C’s public area consists of 16 feet
along its driveway. All the public areas of these entrance
driveways contain a median separating the entrance and exit
driveways, and a grassy area adjacent to the driveway.
The Union argues that handbilling in the public areas re-
ferred to above, at the three entrances to Respondent’s facil-
ity, is unsafe, and cannot be deemed a reasonable, alternative
means of communicating with the employees it sought to or-
ganize.
1387PEPSI-COLA CO.
As set forth above, the General Counsel’s witnesses testi-
fied that cars entered the driveways from the highways at a
high rate of speed, making it unsafe to approach a car which
had slowed or stopped in the driveway. Handbillers stood on
each side of the entry driveway, thereby being available to
give a handbill to the driver or passenger. There was also a
danger of rear end collisions when cars entering the driveway
slowed or stopped to receive a handbill when others exiting
from the highway and following closely behind had to slow
down quickly. Even assuming the accuracy of Respondent’s
radar study, which showed that vehicles entering the facility
traveled at average speeds of approximately 16, 17, and 19
miles per hour, this supports General Counsel’s position that
at that entry speed, with vehicles entering continuously in the
morning rush hour, a safety hazard existed when union
agents entered the roadway to give a handbill to a car’s oc-
cupant. The danger is apparent especially at entrances B and
C where the driveway widened to two lanes within the public
area. If a vehicle with no passenger stopped in the right lane
to receive a handbill, the union agent would have to cross
the left lane of traffic and stand in the left lane to give the
flyer to the driver, or the handbiller standing on the pas-
senger side would have to walk around the car to the driver
side to give a flyer, or the driver would have to lean across
the passenger side to receive it. All of these activities do
constitute a danger to the handbiller and the vehicle. The
Board has recognized that such handbilling on public high-
ways constitutes a danger, and has found that such activity
does not constitute a reasonable alternative means of commu-
nication. Lechmere, Inc., 295 NLRB 92 (1989); Sentry Mar-
kets, 296 NLRB 40 (1989); Best Co., 293 NLRB 845 (1989);
Mountain Country Food Store, 292 NLRB 967 (1989). The
fact that union agents successfully distributed handbills on
the days that they were present at the entrances does not
mean that such handbilling was safely conducted. It does not
appear from the evidence that such handbilling was safely
engaged in.
Respondent argues that such handbilling, if conducted in
the evening rush hour, would be safe. It contends that vehi-
cles leaving Respondent’s premises would be staggered, leav-
ing at different times, and thus able to slow down and re-
ceive a handbill. In addition, it states that as the vehicles left
the premises they would be slowing to enter the highways.
First, there is no evidence of these facts. The Union did not
attempt to handbill in the evening rush hour. Moreover, it
would appear that the only safe handbilling that could be
conducted would be at entrance A where a traffic light con-
trols egress from that entrance. Thus, when cars are stopped
at that light, it would appear that handbillers could approach
those halted vehicles safely. However, there was no evidence
presented as to how many vehicles leave entrance A, as com-
pared with the other entrances. Accordingly, no findings may
be made as to these arguments.
It should be noted that if safely conducted, such
handbilling would be effective. Certain of the cases set forth
above noted that handbilling on public highways was ineffec-
tive because of uncertainty of the audience being reached by
the handbilling, due to the presence, in the facility, of stores
other than the target of the handbilling, and accordingly the
occupants of vehicles entering the facility who may be pa-
trons of other stores, or employees of other stores in the
shopping center. In contrast, here the handbilling at Respond-
ent’s entrances was directly aimed at Respondent’s employ-
ees. No other businesses are located at its facility, and the
area is not open to public traffic. In addition, virtually all of
its employees use private vehicles to enter its premises.
Respondent also argues that the Union could have utilized
the public media to contact its employees, and supports its
argument by stating that 48 percent of its nonsupervisory
employees live in Westchester County, and over 84 percent
live in five upstate counties of New York. The Board in Jean
Country, above, stated that only in ‘‘exceptional’’ cases will
the use of the mass media, including newspapers, be consid-
ered as a feasible alternative to direct contact. This case is
not an exceptional one, and accordingly I do not find that
such media contact would be a reasonable alternative means
of communication.
Respondent further argues that the Union had reasonable,
effective alternative means of communicating with its em-
ployees. It contends that by utilizing the parking lot directly
across the street from entrance C, and maintaining a rec-
reational vehicle thereon which bore a large sign identifying
it as the organizational headquarters of the Union, it was
thereby able to communicate its message to employees. I
note that the vehicle was present at that lot for 10 months.
Any employee who wished to could have received informa-
tion about the Union at that vehicle. There was conflicting
evidence, which I need not resolve, concerning whether the
van was manned daily, as maintained by union witnesses, or
not occupied at all, as contended by Respondent. Apparently,
few if any of Respondent’s employees visited the van. Either
employees were not interested in the Union, or as contended
by Respondent, the vehicle was not manned, or as argued by
the Union, employees did not want to be seen entering the
vehicle. I reject the Union’s argument. Employees taking a
handbill could also be fearful that their identity would be-
come known by Respondent. The point is that the stationing
of the recreational vehicle immediately opposite Respond-
ent’s entrance to its facility represents a significant presence
of the Union at Respondent’s facility. The effectiveness of
its message, posted on the vehicle, would accordingly not be
diluted because of the distance of the vehicle to the target
of the communication, as was the case in Jean Country. In
addition to the name of the Union, its phone number and
other messages could be prominently displayed on it. In ad-
dition, organizational materials would be available at the ve-
hicle, assuming it was occupied. I am aware that entrance C
was the least used of the three entrances to Respondent’s fa-
cility, and it is conceivable that employees using entrances
A and B would never see the Union’s message on the rec-
reational vehicle. However, in view of the fact that about 28
percent of the employees use that entrance, it is likely that
even those employees who do not use that entrance would
have become aware of its presence by other employees, and
would have been able to utilize it in order to obtain informa-
tion about the Union if they were interested. Accordingly, I
believe that the use of the recreational vehicle constitutes a
reasonable effective alternative means of communication
with Respondent’s employees.
Respondent also argues that the Union could have utilized
the resources of the Motor Vehicle Departments in Connecti-
cut, New Jersey, and New York in order to obtain addresses
of the employees it sought to organize. There was testimony
that such information is available on request, for a fee, from
1388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Sentry Markets, supra; Lechmere, Inc., supra.
4 Respondent takes issue with and moves to strike that part of the
General Counsel’s brief in which she argues that Respondent
impermissibly ordered the Union’s agents off public property. In
view of my discussion of the issue of reasonable alternative means
of communication, and the decision herein, I find it unnecessary to
resolve this matter.
such agencies. The evidence was not precise as to the man-
ner in which the request must be made. Respondent’s witness
made personal visits to the bureaus involved, and at the New
York bureau was told that there was a limit of three registra-
tions which may be processed at a personal visit. Respondent
argues that this method of obtaining information concerning
employees would be effective inasmuch as an ‘‘over-
whelming majority’’ of its workers arrive at work by private
vehicle and pass through one of its three entrances. No other
businesses are located at the facility, and therefore the only
vehicles entering and leaving Respondent’s premises at the
rush hour times are its employees. However, as stated by the
Board in Lechmere, Inc., the difficulty with such a method
is that:
employees may use cars that are not registered in their
names, may car pool together, may use alternative
means of transportation, or may park elsewhere. In ad-
dition, part-time employees might not use the parking
lot at those times shortly before and after the store’s
designated opening hours.
Accordingly, although the use of motor vehicle records
would seem to be an effective means of communicating with
employees, the factors set forth above would tend to dimin-
ish the effectiveness of such a method, especially considering
that a maximum of 312 of the 1100 employees, or 27 per-
cent, who use the facility constitute the unit sought by the
Union—secretarial, clerical and maintenance employees. I
accordingly do not believe that the use of the motor vehicle
registration information, by itself, is a reasonable, effective
alternative means of communication. However, the Union’s
use of such records, combined with its use of the recreational
vehicle did, I believe, constitute reasonable, effective alter-
native means of communication with Respondent’s employ-
ees.
The underlying principle at issue is one of accommoda-
tion—specifically, ‘‘how to accommodate the exercise
of rights guaranteed under Section 7 of the Act with a
property owner’s right to protect his property against
intrusions by those whom he has not invited to enter.’’
Tecumseh Foodland, 294 NLRB 486 fn. 7 (1989).
This accommodation must be obtained ‘‘with as little de-
struction of one as is consistent with the maintenance of the
other.’’ NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112
(1956).
In balancing the respective rights, I find that Respondent’s
property interest would suffer an extraordinary impairment
by granting the Union access to its main driveway for the
purpose of handbilling entering cars as it did on November
30, 1989. In making this finding, I have considered the fact
that the handbilling took place only 500 feet within its prop-
erty line from entrance C. One’s first impression is that this
represents a minimal intrusion onto its property, and an in-
significant invasion of its property right, especially consid-
ering that it owns 212 acres of land at this location. I have
also considered the fact that the site of the handbilling took
place about 1920 feet from its headquarters building and the
handbilling did not interfere with any activities at that build-
ing. In addition, I have further considered the fact that during
the 45 minutes of handbilling, during which about 100 cars
passed the handbilling site, there was no evidence of any in-
terference with the vehicles, other than the activity of hand-
ing the flyers to the vehicle occupant.
I make this finding because of the extraordinary showing
made by Respondent of the totally private nature of this fa-
cility. In post-Jean Country cases, the Board, in holding that
access to respondents’ property should be permitted, has
noted that such property had been open to the public.3
Where, however, Respondent’s property is not open to the
public. Respondent has taken specific, substantial steps to en-
sure that only business invitees may enter its property. Ac-
cordingly, the intrusion of three nonemployee handbillers
standing at the main intersection of the driveways in its facil-
ity resulted in a substantial infringement of Respondent’s
property rights. Accordingly, I find that inasmuch as the
Union had reasonable, effective alternative means of commu-
nication with Respondent’s employees, that its Section 7
rights were not ‘‘severely impaired—substantially ‘‘de-
stroyed’’ within the meaning of Babcock & Wilcox without
entry onto Respondent’s property.
It should be noted that on brief, the General Counsel re-
quested an order requiring that access be permitted to Re-
spondent’s parking lot. Inasmuch as no attempt to handbill
at the parking lot was made, that factual situation is not be-
fore me. I may only find, on this record, that the handbilling
at the main intersection on November 30, 1989, was imper-
missible, and Respondent did not violate the Act by advising
the Union’s agents that they could not remain on Respond-
ent’s facility, ordering them to leave, and threatening them
with arrest if they did not do so. In Tecumseh Foodland,
supra, the Board found that the manner in which the union
picketed and handbilled at an employer’s entrance doors was
improper. The Board’s Order did not direct that they could
picket and handbill in a proper manner. Rather the Board
dismissed the complaint based on the conduct before it.4
In conclusion, as I find that Respondent did not violate
Section 8(a)(1) of the Act by the conduct alleged in the com-
plaint, I shall recommend that the complaint be dismissed in
its entirety.
CONCLUSIONS OF LAW
1. The Respondent, Pepsi-Cola Company, is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
1389PEPSI-COLA CO.
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
2. Respondent has not violated the Act in any way as al-
leged in the complaints.
On these findings of fact and conclusions of law and on
the entire record, I make the following recommended5
ORDER
The complaint is dismissed in its entirety.