Emery Realty, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1987

286 N.L.R.B. 372 (N.L.R.B. 1987)

372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Emery Realty, Inc. and Hotel , Motel , Restaurant
Employees and Bartenders Union Local No.
112, affiliated with the Hotel Employees and
Restaurant Employees International Union,
AFL-CIO. Case 9-CA-21009
30 September 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 18 April 1985 Administrative Law Judge
Walter J. Alprin issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the Charging Party and General Counsel filed
briefs in response.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified.
The judge found that the Respondent, Emery
Realty Corporation (Emery), violated Section
8(a)(1) by prohibiting the Union from distributing
organizational literature on its property to the em-
ployees of one of its tenants, the Netherland Plaza
Hotel (Hotel). We agree with the judge's finding
for the reasons set forth below.
Emery owns and operates the Carew Tower
complex in downtown Cincinnati, Ohio. The com-
plex consists of a 47-story office building, whose
tenants are professional businesses, and other com-
mercial space that is rented by the Hotel and vari-
ous retail stores and service shops. In June 1983
Emery twice prohibited union representatives from
distributing organizational handbills in front of the
Hotel employees' entrance off the main lobby of
the complex. The main lobby, which is known as
the "arcade," runs through the center of the com-
plex at ground level, spanning the distance between
two city streets. The stores and service shops face
on the arcade, which varies in width from 35 feet
at its center to 25 feet at its ends. There are numer-
ous entrances to the arcade. These include two
main entrances from the public streets at either end
of the arcade, and entrances from the stores, shops,
and Hotel, the 47-story office building, a lower
arcade level, and a public skywalk system that con-
nects several downtown buildings. Those who use
the arcade include tenants and their employees,
customers of the stores, shops, professional offices
and Hotel, and pedestrians who use the arcade
simply as a convenient passageway to other build-
ings.
The Union represented approximately 450 to 500
employees of the Hotel's predecessor, the Nether-
land Hilton, which closed in late 1981. The Dunfey
Hotel Corporation then assumed operation of the
Netherland Hilton and reopened it as the Nether-
land Plaza in October 1983 after extensive refur-
bishing. As of the reopening, the Hotel had ap-
proximately 300 employees, few if any of whom
had been employed by the Netherland Hilton.
Union President George O'Reilly made several at-
tempts to contact the employees hired by the Hotel
for the purpose of organizing them, including fre-
quenting the Hotel lobby and public areas and vis-
iting a restaurant adjacent to the Hotel lobby.
However, he was unable to contact any Hotel em-
ployees who had been previously employed by the
Netherland Hilton, and was otherwise unsuccessful
in communicating with the Hotel's employees.
Eventually, on 6 June 1983, O'Reilly and two
other union representatives attempted the above-
noted organizational handbilling at the Hotel em-
ployees' entrance off the arcade. After handbilling
at that location for 15 minutes, the union represent-
atives were told by the Respondent's security
guards that soliciting was not permitted and that
they would be arrested if they did not leave. The
union representatives again attempted handbilling
at the employee entrance 2 days later, but left after
being confronted by security guards and the build-
ing superintendent and being informed by two
police officers that they would be arrested for tres-
passing if they remained.
After reviewing then-current law and court
precedent, the judge decided that the property
rights enjoyed by the Respondent as the owner of
the Carew Tower and the arcade must, on balance,
yield to the Section 7 right of the Union to engage
in organizational handbilling in front of the Hotel's
employee entrance located off of the Carew Tower
arcade. In this regard, he rejected the Respondent's
contention that reasonable alternatives other than
handbilling on the Respondent's property existed to
communicate the Union's message to Hotel em-
ployees.
Subsequent to the judge's decision, the Board
issued Fairmont Hotel, 282 NLRB 139 (1986), in
which the Board set forth its view of the proper
application of Supreme Court decisions regarding
conflicts between property rights and Section 7
rights. In Fairmont, the Board held that in cases in-
volving such conflicts, the Board's task is "first to
weigh the relative strength of each party's claim."
The Board stated:
286 NLRB No. 32
EMERY REALTY 373
If the property owner's claim is a strong one,
while the Section 7 right at issue is clearly a
less compelling one, the property right will
prevail. If the property claim is a tenuous one,
and the Section 7 right is clearly more compel-
ling, then the Section 7 right will prevail. Only
in those cases where the respective claims are
relatively equal in strength will effective alter-
native means of communication become deter-
minative. [Fairmont Hotel, supra at 142.]
Factors that may affect the relative strength or
weakness of an asserted property right include the
following: the use to which the property in ques-
tion is put, any restrictions placed on public access
to the property or to the facility located on the
property, and the size and location of the private
facility. Concerning the Section 7 right, factors
that affect the relative strength or weakness of
such a right include the following: the nature of
the right asserted, the purpose for which it is being
asserted, the employer that is the target of the ac-
tivity, the situs of the activity and the relationship
of the situs to the target, the intended audience of
the activity, and, possibly, the manner in which the
right is being asserted. Id. at 141, 142.
In assessing the relative strength of Emery's
property claim, we first note that Emery had
opened the property in question, the arcade, to the
public generally. Not only are those who intend to
visit one of the stores, shops, offices, or the Hotel
invited to use the arcade, but also those who are
merely pedestrians who simply want to use the
arcade as a cut-through between streets. Emery
also permits access to the arcade 7 days a week, 24
hours a day, and thus even when the arcade stores
and shops are closed for business.' Furthermore,
Emery has in the past permitted solicitations in the
arcade by various social service organizations, in-
cluding the Salvation Army, Shriners, and Girl
Scouts. Although Emery has since the Union's
handbilling forbidden such charitable solicitations 2
its past practice is indicative of the low degree of
"privateness" Emery has sought to maintain in the
arcade.3 It is further indicative that such solicita-
tions cause little if any interference with Emery's
property rights, especially when viewed in light of
the fact that Emery offered no testimony that those
activities interfered in any way with the normal use
of the arcade, nor even alleged that such a concern
resulted in its ban on those activities in the arcade.
In this regard Emery's vice president of administra-
' Emery does close the arcade for a short period of time during one
night each year as a means to preserve its status as owner
2 There is no allegation that Emery discriminatorily imposed this ban
2 See, e g, Montgomery Ward & Co, 265 NLRB 60, 69 (1982)
tion, Diana Geiss, conceded that the Girl Scouts
were in fact permitted to set up a stationary booth
in an area of the arcade very close to where the
Union handbilled, which she characterized as a
"low traffic area."4 Emery also still permits Christ-
mas displays on the arcade floor. Consequently, by
preventing the Union from handbilling in the
arcade, Emery was prohibiting an activity that was
neither inconsistent with past uses of the arcade
nor one that would hinder in any significant re-
spect the normal use of its property. Finally, unlike
the property owner in Fairmont Hotel, Emery, as
lessor of the Hotel's facilities, has an economic in-
terest in the business success of the employer with
whom the Union has its primary dispute.'
In contrast, the Section 7 right of employees to
organize, which the Union here seeks to assert
through its organizational solicitations, is at the
"very core" of the interests the National Labor Re-
lations Act seeks to protect.6 Although nonem-
ployee distribution of union organizational litera-
ture is involved, the right that the Union seeks to
assert is a derivative of the right of the Hotel em-
ployees to engage effectively in self-organization.?
As the Supreme Court observed in Central Hard-
ware Co. v. NLRB, 407 U.S. 539, 542 (1972), the
guarantee of Section 7 "includes both the right of
union officials to discuss organization with employ-
ees, and the right of union officials to discuss orga-
nization among themselves." The Court has further
observed in this regard that "[t]he right of self-or-
ganization depends in some measure on the ability
of employees to learn the advantages of self-organi-
zation from others."8 Thus, communication be-
tween the Union and the Hotel's employees regard-
ing self-organization is important to the employees'
ability to exercise effectively their right to decide
whether to organize.
Furthermore, the Union limited its handbilling to
an area directly in front of the employees' entrance
to the Hotel, which was reserved solely for their
use and which was also the only entrance the
Hotel employees were supposed to use. This door
is recessed approximately 6 feet off the arcade, and
thus permits handbilling to occur completely off
the arcade itself. Emery does not allege that the
Union's handbilling interfered in any way with the
normal operation of the arcade, and there is no evi-
dence of complaints by merchants, customers, or
4 Handbilhng in this area therefore clearly does not present the same
security considerations and need to minimize congestion as did the hand-
billing in front of the formal entrance of the hotel in Fairmont Hotel
5 See Scott Hudgens, 230 NLRB 414, 417-418 (1977)
6 Sears, Roebuck & Co v San Diego County District Council of Carpen-
ters, 436 U S 180, 206 fn 42 (1978)
7 Id
8 NLRB v Babcock & Wilcox Co, 351 U S 105, 113 (1956)
374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
even pedestrians regarding the handbilling. The
Union's activity was thus in such proximity to the
targeted employer's employees, that the Union
could not have more carefully restricted its hand-
billing activities so as to be able to reach the in-
tended audience while not disturbing others. Ac-
cordingly, by engaging in organizational handbill-
ing in front of the Hotel employees' entrance, the
Union was asserting substantial rights under Sec-
tion 7.
In sum , the Section 7 interest being asserted with
respect to the organizational handbilling was quite
a strong one, while the Respondent's property in-
terest in limiting the use of the area adjacent to the
Hotel employees ' entrance was relatively weak.
Accordingly, we fmd that the Section 7 right exer-
cised by the Union outweighs the Respondent's
property right to exclude the union agents engaged
in handbilling. Because the rights asserted by the
Union and the Respondent are not relatively equal,
we find that the availability of reasonable alterna-
tive means by which the Union could have com-
municated its message is not determinative under a
Fairmont analysis .9 Accordingly, we find on this
basis, in agreement with the judge 's conclusions,
that the Respondent violated Section 8(a)(1) by
prohibiting union representatives from distributing
union literature to employees on its premises and
threatening them with arrest for attempting to do
so.
Moreover, even assuming that the claims assert-
ed by the parties were, under a Fairmont analysis,
relatively equal in strength, we agree with the
judge that no reasonable alternative means were
available by which the Union could have commu-
nicated its message to the Hotel's employees. Ac-
cordingly, under this alternative analysis, we find
further basis for affirming the conclusion of the
judge that the Respondent violated the Act as
stated above.
Regarding the existence of alternative means of
communication , the record shows that in May
1983, several months prior to the opening of the
Hotel, Union President George O'Reilly mailed a
letter to all former employees of the Netherland
Hilton informing them that the Hotel was taking
employment applications and requesting them to
advise the Union if they were hired. In October
1983 O'Reilly sent a followup letter again asking
the former employees to advise the Union if the
9 Member Johansen considers the significant factor of reasonable
means of communication as he evaluates the nature and strength of the
Sec 7 claim Fairmont, supra at 142 As explained below , the record in
this case indicated that the Union had no such reasonable alternative
means of communication , thus further supporting , in his view , the con-
clusion that the Sec 7 right in this case outweighs the Respondent's
property rights
Hotel hired them. The Union never received a re-
sponse from any former employee who was hired.
O'Reilly attended the opening day festivities at the
Hotel in October 1983 where he was able to recog-
nize only one former member of the Union. O'Reil-
ly was unable to converse with him and has not
seen him since . O'Reilly and the Union's vice presi-
dent later had several lunches in a restaurant off
the Hotel's main lobby in an attempt to speak with
Hotel service employees, but they were unsuccess-
ful. Although the Hotel's employees wore name
tags, only their first names appeared on the tags,
and thus the tags provided no information that
would enable the Union to follow up with contacts
by telephone, mail, or home visits. During the next
several months O'Reilly visited the lobby and other
public areas of the Hotel on numerous occasions in
an attempt to speak with Hotel employees, but was
again unsuccessful .10 In June 1984 O'Reilly re-
quested the Hotel to provide the Union with a list
of the Hotel employees' names and addresses, but
the Hotel denied his request.I 1
Emery argues that the Union could have availed
itself of several other allegedly reasonable means of
communicating with the Hotel's employees. It first
suggests that the Union could have handbilled on
public property outside the entrances to the arcade.
However, there are numerous entrances Hotel em-
ployees might use in gaining access to the
arcade,12 which creates a difficult task of cover-
age. Even if coverage of the entrances could be ac-
complished, there appears to be no effective way
of targeting the approximately 300 Hotel employ-
ees sought to be organized out of the thousands of
persons who daily enter and exit the arcade. Hotel
employees are forbidden to wear their Hotel uni-
forms off the Hotel's premises, and they apparently
wear no other identifying insignia . Also, as shown
by exhibits attached to one of the parties' written
stipulations, Hotel employees arrive at and depart
from the Hotel throughout the day with no clearly
defined peak period of Hotel employee traffic dis-
cernible. Thus, selecting only certain times to
handbill would not necessarily assist in reaching
the targeted employees.13
10 We disavow the judge's reliance on certain trespassory visits by
O'Reilly and other union agents in July 1984 in concluding that no rea-
sonable alternative means of communication existed in June 1984
11 Although prior to the hearing the Union was able to contact four
Hotel employees who stated they would furnish the Union with the
names and addresses of their fellow employees , there is no evidence that
they ever provided the Union this information
12 We note in this regard that , contrary to the judge's implicit finding,
there is no direct access from Fifth Street to the arcade There does
appear to be indirect access from Fifth Street to the arcade through those
Carew Tower complex stores that front on Fifth Street
13 As stated by the Tenth Circuit Court of Appeals in Husky Oil,,
NPR Operations v. NLRB, 669 F 2d 643 (10th Cir 1982), "Babcock &
Continued
EMERY REALTY 375
Furthermore, handbilling in front of the numer-
ous entrances to the arcade would likely interfere
with traffic much more than handbilling limited to
the alcove in front of the Hotel employees' en-
trance. It also seems probable that handbilling at
the arcade entrances would cause a greater litter
problem because many more handbills would have
to be passed out and because most handbills would
likely be immediately discarded within or near the
arcade because they would be irrelevant to the vast
majority of arcade users, who are not Hotel em-
ployees.
Emery further suggests that the Union could
have advertised in the newspapers or on radio or
television as a means of reaching Hotel employees.
However, advertising through the mass media in a
metropolitan area as populous as Cincinnati, Ohio,
in order to convey a message to approximately
only 300 people would be impractical and ineffec-
tual.14 We also reject as patently unreasonable
Emery's further suggestion that the Union could
attempt contacting Hotel employees by stationing
persons in a restaurant across the arcade from the
Hotel employees' entrance so that they could ob-
serve the employees as they use the entrance and
then later attempt to recognize the employees out-
side the arcade.
Thus, we find that reasonable alternative means
by which the Union could have communicated its
message to the Hotel employees are nonexistent.
This alternative means inquiry therefore further
demonstrates that Emery's property rights must
yield here.15 Accordingly, we conclude that
Wilcox does not require a union to resort to unsatisfactory means of com-
munication and we may assess the channels available to the union
without first requiring the union to try them " Id at 645 The union's or-
ganizational effort , or lack of it, however, remains a factual circumstance
to be weighed in deciding if the union has met its burden of proof.
Hutzler Bros v NLRB, 630 F 2d 1012, 1017 (4th Cir 1980), denying enf
Hutzler Bros, 241 NLRB 914 (1979) In other words, with respect to the
reasonable alternative means inquiry , there are some instances in which
the reasonableness of suggested alternatives can be assessed on the basis
of objective evidence even without the union 's having attempted to use
those means, while in other instances the General Counsel will not have
carried the burden of showing absence of reasonable alternative means if
the union has not attempted to use a particular suggested nonencroaching
method of communicating its message and demonstrated that such a
method is not a reasonable means In the present case , as indicated above,
the reasonableness of the alternative of handbilling on public property
near outside entrances can be assessed on this record
14 See NLRB v S & H Grossinger's, Inc, 372 F 2d 26, 29 (2d Cir.
1967) See also Scott Hudgens, supra, 230 NLRB at 416
15 Chairman Dotson finds it unnecessary to consider whether reasona-
ble alternative means of communication aie available here because the
Sec 7 rights asserted by the Union substantially outweigh the property
rights asserted by Emery, and thus the competing rights are not relative-
ly equal See Fairmont Hotel, supra at 143
Member Stephens adheres to the position stated in his concurring
opinion in Fairmont Hotel that an inquiry into the availability of rea-
sonably effective alternative means of communication is not limited
to circumstances where the competing property and Sec 7 rights are
in equipoise Id at 144
Emery violated Section 8(a)(1) by prohibiting the
Union from engaging in organizational handbilling
in front of the Hotel employees' entrance and
threatening union representatives' arrest for at-
6tempting to do so.'
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Emery Realty, Inc., Cincinnati, Ohio, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
Substitute the following for paragraph 1.
"1. Cease and desist from prohibiting union rep-
resentatives from distributing union literature to
employees of the Netherland Plaza Hotel at the
employees' doorway on the arcade on its property
and threatening them with arrest for attempting to
do so, as long as the activity is conducted by a rea-
sonable number of persons and does not unduly
interfere with the normal use of facilities or oper-
ation of businesses not associated with the Nether-
land Plaza Hotel."
2. Substitute the attached notice for that of the
administrative law judge.
16 We shall modify the recommended Order to place limits on the
Union's handbilling activities that the Respondent must permit See, e g.,
Seattle-First National Bank, 258 NLRB 1222 (1981)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join , or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT prohibit representatives of Hotel,
Motel, Restaurant Employees and Bartenders
Union Local No. 112, affiliated with the Hotel Em-
ployees and Restaurant Employees International
Union, AFL-CIO, from distributing union litera-
376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ture to the employees of the Netherland Plaza
Hotel at the employees' doorway on the arcade on
our property, nor will we threaten them with
arrest for attempting to do so, as long as that activ-
ity is conducted by a reasonable number of persons
and does not unduly interfere with the normal use
of facilities or operation of businesses not associat-
ed with the Netherland Plaza Hotel.
EMERY REALTY, INC.
Bruce H. Meizlish, Esq., the General Counsel.
David L. Barth, Esq. and Paul R. Moran, Esq. (Corr, Bas-
sett, Kohlhepp, Halloran & Moran), of Cincinnati, Ohio,
for the Respondent.
Jerry F. Venn, Esq., of Cincinnati, Ohio, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
WALTER J. ALPRIN, Administrative Law Judge. The
charge in this case was filed on 22 June 19841 and com-
plaint issued on 13 September, alleging that Respondent
had violated Section 8(a)(1) of the National Labor Rela-
tions Act (the Act) by refusing to permit representatives
of the Charging Party Union to distribute literature on
its premises and threatening them with arrest if they did
so. Hearing was held before me at Cincinnati, Ohio, on 8
November.
On the entire record, including my observation of the
witnesses , and on consideration of the briefs filed on
behalf of the General Counsel, the Respondent, and the
Charging Party, I make the following
FINDINGS OF FACT
1. BACKGROUND AND JURISDICTION
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. Steps Leading to Confrontations
On the reopening of the Hotel in October 1983, there
were an estimated 300 employees whom the Union de-
sired to organize and represent. They did not, however,
know the identity of any of the employees and were
unable to begin making contact with employees favor-
ably disposed to unionization.
George E. O'Reilly, president of the local Union, had
sent a letter on 17 May 1983, to all union members,
former employees of the Hotel, notifying them that the
new Hotel would be taking applications for employment
from 1 June and that the Union planned an organization-
al drive and would need to be advised if union members
were hired. A similar followup letter was sent 4 October,
but none of the union members were hired. Meanwhile,
on 18 July 1983, the president of the Cincinnati Hotel
Employees Council sent a letter to the Hotel's general
manager , requesting a meeting to "explore the possibility
of an ongoing relationship" similar to that enjoyed with
the Hotel's predecessors. No response was indicated in
the record.
When the Hotel opened, O'Reilly and the union busi-
ness agent attended the festivities in the hope of recog-
nizing employees through whom organizational efforts
might be instituted. He recognized only one person,
however, and that individual was neither a member of
the Union nor favorable to it. On three additional occa-
sions between 6 October 1983 and 6 June 1984, union
representatives had lunch in the restaurant off the Hotel's
main lobby, for a similar purpose and to try initiating
conversations with employees, all of which proved use-
less. On several other occasions O'Reilly visited the
lobby and public areas of the Hotel for the same pur-
pose, but with the same result . O'Reilly also orally asked
union members at meetings for assistance in identifying
Hotel employees, also without success.
Emery Realty Corp. (Emery or Respondent) is a Dela-
ware corporation engaged in business at Cincinnati,
Ohio. It admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
Hotel, Motel, Restaurant Employees and Bartenders
Union, Local No. 112, affiliated with the Hotel Employ-
ees and Restaurant Employees International Union,
AFL-CIO (the Union) is a labor organization within the
meaning of Section 2(5) of the Act.
Emery owns and operates a large , 47-story multiuse
building in downtown Cincinnati, Ohio, known as the
Carew Tower (the Tower), more fully described below,
a major tenant of which is the Netherland Plaza Hotel
(the Hotel). Hotel employees were organized in the
1940s. In the 1950s, Emery sold or leased the Hotel to
the Hilton Corporation, which finally closed the Hotel
on 31 December 1981. After extensive refurbishing, the
Hotel was reopened by the Dunfey Hotel Corporation in
October 1983, at which point the Union began efforts to
organize the employees of the newly opened hotel.
' All dates are in 1984 unless otherwise indicated
B. The Confrontations
On 6 June, at approximately 4:30 p.m., O'Reilly and
two other nonemployee union representatives began dis-
tributing an organizational handbill, outside the Hotel's
premises, at the door designated as the sole employee en-
trance to and exit from the Hotel. This door is located in
a small alcove to the arcade of the Tower building, gen-
erally open to the public but owned and controlled by
Respondent. There is no evidence of record of any dis-
turbance, but after about 15 minutes, during which about
15 handbills were distributed, the union representatives
were approached by one of Respondent's security guards
who informed them that Respondent did not permit so-
liciting in the arcade, and that if they continued, he
would call the police. The union representatives there-
upon left the arcade.
On 8 June, the union representatives returned at 7 a.m.
and in 20 minutes had distributed about 25 handbills.
They were again confronted by Emery's security guards
and building superintendant. The union representatives at
first resisted and declared an intention to continue the
distribution, but, on the arrival of two police officers of
EMERY REALTY 377
the City of Cincinnati who informed therm that they
would be arrested for criminal trespass if they remained,
they left. Again, the record does not disclose any dis-
turbance in the arcade.
C Steps Taken After the Confrontations
On 11 June, O'Reilly wrote the Hotel's local general
manager , advising of the campaign, complaining about
the interruption of handbilling, and requesting a list of
names, addresses, and department classifications of all
employees. The letter was forwarded to corporate offices
and responded to on 12 July, to the effect that on advice
of counsel, the Hotel would not provide such informa-
tion.
On 19 and 20 July, O'Reilly and three other nonem-
ployee union representatives entered the Hotel and dis-
persed to various floors in attempts to make contact with
room attendants (maids). The Hotel sent the Union a
letter dated 24 July complaining of criminal trespass and
threatening prosecution should it continue.
D. Description of Carew Towers Arcade
Carew Towers is a 47-story complex in central down-
town Cincinnati. The Hotel is located on the second and
higher floors, with approximately 150 offices leased on
still higher floors. The ground level of the building,
which covers one-half of a full block, contains an arcade
extending east-west between Race Street and Vine Street
and north-south between that passageway and Fifth
Street. Facing on the arcade are a major department
store and some 12 additional retail stores. The central
arcade ranges from 25 to 35 feet in width.
Exits from and entrances to the arcade itself are locat-
ed on Race, Vine, and Fifth Streets; to and from the
retail stores; in some instances, through the retail stores
to and from Race, Vine, or Fifth Streets; to and from the
lower arcade garage; to and from the Hotel lobby and
rooms by stairs and by elevators; to and from upper
story offices by elevators; and to and from the Cincinnati
Skywalk, a system of enclosed second-story walkways
running between a number of buildings connecting
downtown Cincinnati and containing itself a number of
retail stores and service shops.
The arcade is open 7 days per week, 24 hours per day,
except for one hour periods, about once a year, when
after notice Emery prohibits public: use in order to exer-
cise and maintain its status as owner. The arcade is used
by tenants, employees, and visitors to the retail stores
and service shops, the Hotel and the offices; those utiliz-
ing the skywalk; and those just passing through. Re-
spondent enforced a rule against solicitation or distribu-
tion within the arcade, which, in the past was relaxed for
such charitable or civic groups as the Salvation Army,
Shriners, and Girl Scouts, but which has been stringently
applied since the attempted distribution by the Union.
E. Possibilities of Employee Contact
The Hotel employees' door on the arcade is the only
ingress and egress permitted employees, and anyone
using that door is in all probability a Hotel employee.
Once beyond this doorway it is not possible to identify
a Hotel employee as such. Hotel employees are not per-
mitted to wear uniforms outside the Hotel premises, and
there is no employee parking lot. Within the Hotel, em-
ployees wear identifying badges with their first names
only.
Costs of newspaper advertisements had not been inves-
tigated prior to preparation for hearing, though O'Reilly
had once used newspaper advertising for an organiza-
tional campaign in Chicago. Since the filing of charges
herein, the Union has been able to contact four of the
Hotel's employees who have provided information on
shift times, but not on names and addresses of fellow em-
ployees.
III. DISCUSSION
Section 7 of the Act guarantees workers the right "to
self organization, to form, join, or assist labor organiza-
tions." Union representatives have a concurrent right to
inform employees of the advantages of representation by
that union. When union organizers seek to exercise this
right on private property, a conflict arises between the
right of the owner of that property to dictate its use and
the Section 7 rights of employees. The guiding principal
for adjusting this conflict while protecting the sanctity of
private ownership was enunciated almost 30 years ago as
follows:
It is our judgment, however, that an 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 employees
with its message and if the employer's notice or
order does not discriminate against the union by al-
lowing other distribution. [NLRB v. Babcock &
Wilcox Co., 351 U.S. 105, 112 (1956).]
There is no issue of discrimination against the Union.
The case at hand is thus to be decided on balancing the
exclusivity of use of personal property against the rea-
sonableness of the Union's organizational attempt exclu-
sive of distributing handbills while trespassing.
The General Counsel has grounded his presentation
and argument largely on the Board's decision in Hutzler
Bros. Co., 241 NLRB 914 (1979), that since the Union
was unable to contact employees at the entrances and
exits to the Employer's private property, was unable to
identify the employees on the working premises or in an
employee parking lot for later at-home contact, and had
little likelihood of reaching the employees without access
to private property, the balancing test favors Section 7
rights over the normally predominant right of private
property. However, Respondent correctly points out that
the court overruled the Board. Hutzler Bros. Co. v.
NLRB, 630 F.2d 1012 (4th Cir. 1980).
There, the circuit court quotes Central Hardware Co. v.
NLRB, 407 U.S. 539, 543 (1972), that "The Board and
the courts have the duty to resolve conflicts between or-
ganization rights and property rights, and to seek proper
accommodation between the two," and respects the resil-
ient "Babcock principles" for striking a balance. It further
378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
notes the language of Sears, Roebuck & Co. v. San Diego
County District Council of Carpenters, 436 U.S. 180, 205
(1978), that:
To gain access, the union has the burden of
showing that no other reasonable means of commu-
nicating its organizational message to the employees
exists or that the employer's access rules discrimi-
nate against union solicitation. That the burden im-
posed on the union is a heavy one is evidenced by
the fact that the balance struck by the Board and
the courts under the Babcock accommodation prin-
ciple has rarely been in favor of trespassory organi-
zational activity.
After recognizing that the determination of the bal-
ance rests with the Board, based on proper "findings of
fact supported by substantial evidence on the record as a
whole"2 the decision rules that:
The ultimate question, however, is not whether
organizational contact is difficult, but whether the
difficulty can be reasonably overcome. There
indeed may be situations where the combination of
physical location, type of work, and employer ac-
tivity make it apparent that reasonable alternative
methods of communication do not exist. In such
cases it would not be necessary to prove the futility
of attempting alternative means of communication
by active efforts on the part of union organizers. To
prove that access to employer property is required
it is not necessary that every possible means of
communication be exhausted. This, of course, again
involves the question of drawing the evidentiary
line.
The circuit court ruled in Hutzler Bros., supra, that
there was insufficient evidence of record to support a
finding of fact that access to the employer's private
property was reasonably required to communicate with
employees. It found that the Union had intentionally
done no more than engage in two attempts at purely pro
forma handbilling and made no other bona fide attempts
to identify or contact employees by other reasonably
available avenues of communication.
The evidentiary record in the matter at hand is quite
to the contrary. Rather than pro forma attempts, the
Union made actual and reasonable attempts at contact. In
writing, it twice solicited assistance from union members
and solicited them orally in addition. Nontrespassory
visits were made to the Hotel and its restaurant in failed
attempts to identify or contact employees. Even obvious-
ly trespassory visits to the corridors of the Hotel's rooms
were made in similar failed attempts. The Union's re-
quest by letter that the Hotel identify its employees was
probably not made with any great expectations of suc-
cess and might be considered pro forma, but it does evi-
dence the fact that employer cooperation could not be
expected and, of course, the Union on two occasions
made failed attempts to handbill employees in the pri-
2 NLRB Y. Babcock & Wilcox, supra at 112, citing Universal Camera Y.
N L R B , 340 U S 474 (1951)
vately owned arcade, which though open to the public
was restricted against solicitations. I find that this series
of actions were more than pro forma, and constituted
bona fide attempts to identify or contact employees by
reasonably available avenues of communication.
Respondent argues that these attempts did not exhaust
the menu of reasonably available avenues of communica-
tion, and suggests the following:
(a) That the Union could have handbilled or taken
other action on public property at the exits to the arcade.
I find that this would have been unreasonable, ineffec-
tive, or both. As indicated supra, in order to cover all
the entrances and exits Hotel employees might have used
before or after the employees' arcade doorway, the
Union would have had to station people at innumerable
places throughout the entire downtown area of Cincin-
nati, probably deploying more representatives than the
300 employees it hoped to contact. The same holds true
for setting up stands with appropriate signs the employ-
ees could see on leaving or before entering the arcade,
inviting the employees to possibly identify themselves to
fellow employees and to their employer as being proun-
ion, itself not an acceptable tactic. The same holds true
for posting banners or other signs where employees
might see them.
(b) That the Union could have advertised in newspa-
pers, or on radio or television. I also find such advertis-
ing, in a metropolitan area such as Cincinnati, which
alone has a city population of almost half a million, to be
an unreasonable requirement. See Solo Cup Co., 172
NLRB 1110 (1968); Hutzler Bros. Co., supra.
(c) That the Union could, through four employees
identified prior to the hearing, who have provided shift
information, identify the other employees. Such expecta-
tion is not reasonable. Few employees are ever in a posi-
tion to provide lists of names and addresses, and a proun-
ion employee may be understandably loath to identify
only a few other employees as that may in turn identify
him to the employer as being prounion.
(d) That, as stated in Respondent's brief, "there were
and are many other reasonable means of communication
... which were never attempted.. .." As noted supra,
in quotations from the circuit' court decision in Hutzler
Bros., to prove that access to private property is re-
quired, it is not necessary that every possible means of
communication be exhausted.
In view of the evidentiary facts herein, I find that the
Union has no other reasonable means of communicating
its organizational message to the Hotel's employees other
than those involving solicitation on Respondent's private
property contrary to the Respondent's regulations for the
public use of that property. This determination is limited
to the use of the small alcove off the arcade, at the Hotel
employees' doorway, and subject to the limitations of
Central Hardware Co. v. NLRB, supra.
CONCLUSIONS OF LAW
1. Emery Realty , Inc. is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
EMERY REALTY 379
2. Hotel, Motel, Restaurant Employees and Bartenders
Union Local No. 112, affiliated with the Hotel Employ-
ees and Restaurant Employees International Union,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3 By prohibiting union representatives from distribut-
ing union literature to employees on its premises and
threatening them with arrest for attempting to do so, Re-
spondent violated 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 has violated Section
8(a)(1) of the Act, I shall recommend that it be ordered
to cease and desist therefrom and that it take certain af-
firmative action designed to effectuate the policies of the
Act.
On the basis of the foregoing findings of fact and con-
clusions of law, and the entire record and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended3
ORDER
The Respondent, Emery Realty, Inc., Cincinnati,
Ohio, its officers , agents, successors , and assigns, shall
1. Cease and desist from prohibiting union representa-
tives from distributing union literature to employees of
the Netherland Plaza Hotel at the employees' doorway
on the arcade on its property and threatening them with
arrest for attempting to do so.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its premises in the Carew Tower at Cincin-
nati, Ohio, or in the immediate proximity to the employ-
ees' doorway of the Netherland Plaza Hotel on the
arcade, copies of the attached notice marked "Appen-
dix." Copies of the notice, on forms provided by the
Regional Director for Region 9, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted . Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
S If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses.
If 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."