Operations In Fiscal Year 1988 - National Labor Relations Board

66 Fifty-Third Annual Report of the National Labor Relations Boardopen spaces and buildings—whichever is the situs to whichthose asserting Section 7 rights seek access.) Factors that maybe relevant to the consideration of a Section 7 right in anygiven case include, but are not limited to, the nature of theright, the identity of the employer to which the right is directlyrelated (e.g., the employer with whom a union has a primarydispute), the relationship of the employer or other targetto the property to which access is sought, the identity of theaudience to which the communications concerning the Section7 right are directed, and the manner in which the activity relatedto that right is carried out. Factors that may be relevantto the assessment of alternative means include, but are not limitedto, the desirability of avoiding the enmeshment of neutralsin labor disputes, the safety of attempting communications atalternative public sites, the burden and expense of nontrespassorycommunication alternatives, and, most significantly, theextent to which exclusive use of the nontrespassory alternativeswould dilute the effectiveness of the message.Although the Board identified the foregoing factors within categorieslabeled "property rights," "Section 7 rights," and "alternativemeans," those categories are not entirely distinct and selfcontained.The Board remarked, "A given factor may be relevantto more than one inquiry."The Board also noted that it is the General Counsel's burdento prove, by objective considerations rather than subjective impressions,that reasonably effective alternative means were notavailable in the circumstances. Additionally, the Board pointedout that it is the burden of the party claiming a property right toestablish the nature of its property interest.The instant case involved picketing by nonemployee unionagents carrying signs to inform the public that the employees ofa particular store in a large shopping mall were not representedby a union. The issue was the location of the picketing—whetherthose who controlled the mall property around the store couldlawfully prevent the pickets from communicating their messageto the public near the store entrance.Pursuant to its accommodation of the respective rights of theparties, the Board concluded that the communication of theunion's message from public property at the entrances to theshopping center was not a reasonably effective alternative, andthat there was in fact no method of communicating the union'smessage effectively other than entry onto the mall property. Accordingly,it held that the respondents—the mall operator andthe store that was the target of the picketing—violated Section8(a)(1) by demanding that the union refrain from informationalpicketing protected by Section 7 and causing the police to threatenpickets with arrest for trespass if they did not cease such protectedpicketing.