Id. (footnote omitted). In Giant Food Market, Inc. v. NLRB, 633 F.2d 18 (6th Cir. 1980), union members began picketing a food store the day it opened to draw attention to its hiring of nonunion employees. Store officials obtained a temporary restraining order and had the picketers moved away from the storefront area.
In this case, Local 501 concedes that it had ample opportunity to reach the employees of Pond at Entrance No. 2. It argues, however, that the location of the reserved primary gate unreasonably impaired the union's otherwise legitimate and protected attempt to convey its area standards message to the public. Otherwise proper area standards picketing is clearly protected conduct under section 7 of the Act, 29 U.S.C. § 157, which protects concerted activity for mutual aid or protection. See, e.g., Sears, Roebuck Co. v. San Diego County Dist. Council of Carpenters, 436 U.S. 180, 206 n. 42, 98 S.Ct. 1745, 1762 n. 42, 56 L.Ed.2d 209 (1978); Giant Food Markets, Inc. v. NLRB, 633 F.2d 18, 24-25 (6th Cir. 1980); International Hod Carriers, Local 41 (Calumet Contractors Ass'n), 133 N.L.R.B. 512 (1961); cf. Denver Building, 341 U.S. at 692, 71 S.Ct. at 953 (noting that section 8(b)(4) was intended to preserve "the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes"). Both the Board and the courts have also recognized that communicating a grievance to members of the public is an important aspect of area standards picketing.
It is undisputed that peaceful informational picketing of the type involved here is a protected activity under Section 7 of the Act. See Sears, Roebuck Co. v. San Diego Dist. Council of Carpenters, 436 U.S. 180, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978); International Longshoremen's Local 1416 v. Ariadne Shipping Co., 397 U.S. 195, 90 S.Ct. 872, 25 L.Ed.2d 218 (1970); Giant Food Mkts. v. NLRB, 633 F.2d 18 (6th Cir. 1980). The same rule has been applied to union handbilling.
Although some forms of pickets constitute unfair labor practices under 29 U.S.C. § 158(b), the NLRA protects a so-called area-standards picket, which seeks to alert the public that a particular employer pays lower wages to nonunion workers than a union worker in that area would receive. See Sears, Roebuck & Co. v. San Diego Cty. Dist. Council of Carpenters, 436 U.S. 180, 185-87, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978) ; see also Giant Food Mkts . , Inc. v. NLRB, 633 F.2d 18, 23 & n.11 (6th Cir. 1980) (approving of area-standards picketing). At the same time, however, the instructions allowed the jury to conclude that the defendants had pursued an illegitimate labor objective by finding that the defendants sought personal payoffs or payment for unwanted and superfluous, as opposed to "fictitious," work, in consequence of the use of the word "or" between "imposed, unwanted, superfluous" and "imposed, unwanted, and fictitious" in the instructions.
A union engages in area standards handbilling "`to protect the employment standards it has successfully negotiated in a particular geographic area from the unfair competitive advantage that would be enjoyed by an employer whose labor cost package was less than those of employers subjected to the area contract standards.'" Giant Food Markets, Inc. v. NLRB, 633 F.2d 18, 23 n. 11 (6th Cir. 1980) (quoting Giant Food Markets, Inc., 241 N.L.R.B. 727, 728 (1979)). Section 7 of the NLRA provides that "employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."
29 U.S.C. §(s) 157; Eastex, Inc. v. NLRB, 437 U.S. 556, 564 (1978). Such union activity has been characterized as similar in many respects to so-called "area standards" picketing, which this court has held to be protected activity under section 7. Giant Foot Markets, Inc. v. NLRB, 633 F.2d 18, 23 (6th Cir. 1980). While we have some doubt whether the evidence in this case supports the Board's conclusion that the handbillers were engaged in section 7 protected activity, we need not decide the question because, assuming it was, we are satisfied that in forbidding the union's handbilling on mall premises, CREP did not commit an unfair labor practice.
On the other hand, under section 7 of the NLRA, 29 U.S.C. §(s) 157, the right of employees "to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection" includes union activity intended to protect the area wage and benefit standards that a union has negotiated for its members. Giant Food Markets, Inc. v. NLRB, 633 F.2d 18, 23 (6th Cir. 1980). "Area standards" activity, such as that involved in this case, is intended to protect wage and benefit standards by exerting pressure on nonunion employers with a competitive advantage over union employers who pay higher wages.
This simply means that the Union, in order to do an effective job, needs to handbill at numerous locations. Moreover, as the Sixth Circuit held in Giant Food Markets, Inc. v. NLRB, 633 F.2d 18, 24 (6th Cir. 1980), "[a] mass media campaign would . . . diffuse the effectiveness of the communication by being physically removed from the actual location of the store whose policies are at issue and would prevent any personal contact between the Union and the intended audience." Both the ALJ and the Board found that a mass media effort would not be a reasonable alternative to handbilling, and we find that there is substantial support in the record for this conclusion.
As the right a union seeks to advance becomes less central and the union's asserted audience becomes larger ( e.g., "consumers" of a product rather than "employees" of the producer), and less connected to the core dispute, alternative means of reaching the asserted audience become more scarce. See Giant Food Markets, Inc. v. NLRB, 633 F.2d 18, 24 (6th Cir. 1980) (observing that generally it will be easier to communicate with a specific number of discrete employees than with potential customers of a large retail store). The Board can deal with this anomaly effectively only if "a union's own definition of the audience it seeks to reach" does "not necessarily control the analysis of what other means of communication constitute reasonable alternatives."
They are not constitutional errors unless they are so fundamentally unfair as to deprive petitioner of a fair trial and to due process of law. See Long v. Smith, 633 F. 2d 18, 23 (6th Cir. 1981). In the present case, although the trial court failed to instruct the jurors on CJI 7.23 concerning the victim's past incidents of violence, the trial court advised the jurors on three occasions that in determining whether petitioner reasonably believed that either he or his girlfriend were in serious danger of being killed or seriously injured, so as to support petitioner's self-defense or defense of others theory, the jury could consider whether petitioner was aware of any prior violent acts or threats of the victim.