Loews L'Enfant Plaza Hotel

National Labor Relations Board - Board Decisions

Mar 31, 1995

316 N.L.R.B. 1111 (N.L.R.B. 1995)

1111
316 NLRB No. 169
LOEWS L’ENFANT PLAZA HOTEL
1 On June 14, 1991, Administrative Law Judge David S. Davidson
issued the attached decision. The Respondent filed exceptions and a
supporting brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 On February 13, 1992, the Board advised the parties that it
would accept supplemental briefs discussing the impact of Lechmere
on this case. On March 5, the General Counsel filed a motion to re-
mand the case to the Regional Director for dismissal of the com-
plaint. On May 1, the Board denied the General Counsel’s motion.
Thereafter, the General Counsel and the Respondent filed supple-
mental briefs. In addition, the American Federation of Labor and
Congress of Industrial Organizations (AFL–CIO), the National Retail
Federation, and the Council on Labor Law Equality filed briefs as
amici curiae.
L’Enfant Plaza Properties, Inc. and its Managing
Agent Loews Corporation, d/b/a Loews
L’Enfant Plaza Hotel and Carpenters District
Council of Washington, D.C. and Vicinity,
United Brotherhood of Carpenters and Joiners
of America. Case 5–CA–20137
March 31, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND COHEN
The issue presented here is whether the Respondent
violated Section 8(a)(1) of the Act by prohibiting non-
employees from communicating the Union’s area
standards protest by distributing handbills to customers
at the private property entrance to the Respondent’s
hotel.1 Applying the analysis of nonemployee access
issues set forth in Jean Country, 291 NLRB 11 (1988),
the judge found that the Respondent acted unlawfully.
While the case was before the Board on the Respond-
ent’s exceptions, the Supreme Court issued its decision
in Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), hold-
ing that the Board’s balancing test in Jean Country, as
applied to nonemployee union organizers, was incon-
sistent with controlling Court precedent.2
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-
clusions only to the extent consistent with this Deci-
sion and Order. For the reasons fully set forth in Leslie
Homes, Inc., 316 NLRB 123 (1995), we hold that Bab-
cock & Wilcox, 351 U.S. 105 (1956), as reaffirmed in
Lechmere, applies to nonemployee area standards ac-
tivities. Under those Supreme Court cases, a union or-
ganizer cannot ordinarily gain access to an employer’s
property for the purpose of organizing the employer’s
employees. The organizer can gain access only in the
exceptional circumstance where the employees are rea-
sonably accessible only through trespassory means.
Applying that approach to the instant case, the General
Counsel has failed to prove that the targets of the
Union’s handbilling, viz, the Respondent’s customers,
were reasonably accessible only through trespassory
means. Accordingly, the Union was not entitled to ac-
cess. We need not, and do not, reach the issue of
whether access would be required if the customer tar-
gets of the handbilling were reasonably accessible only
through trespassory means.
The Respondent owns and operates the Loews
L’Enfant Plaza Hotel as part of a multi-building com-
mercial complex in southwest Washington, D.C. The
hotel stands at the east end of an open plaza. Office
buildings are north and south of the plaza. L’Enfant
Promenade, a broad divided public thoroughfare, bor-
ders the plaza on the west. A one-way service drive-
way provides vehicular access from L’Enfant Prome-
nade to the hotel and adjacent office buildings. An es-
timated 95 percent of people using the hotel arrive by
car, taxi, limousine, or bus. Most vehicles travel south-
bound on the Promenade, turn left, pause at a stop
sign, then cross the northbound lanes to enter the serv-
ice driveway. Northbound vehicles must slow consider-
ably before turning right into the driveway. Some other
vehicles travel from a lower level on a service drive
adjacent to the northbound Promenade lanes, stop at a
stop sign, then turn right onto the main service drive-
way. There are paved public areas adjacent to each of
the aforementioned stop signs and immediately along-
side the Promenade. The hotel, the plaza, the service
driveways, and walkways next to the main driveway
are on the Respondent’s private property.
In the summer of 1988, three union representatives
began area standards/customer boycott handbilling on
the private property sidewalk directly in front of the
hotel. ‘‘PLEASE DO NOT PATRONIZE LOEW’S
L’ENFANT PLAZA HOTEL’’ headlined the handbills.
In accompanying text, the Union asserted that non-
union employees of subcontractors performing renova-
tion work at the hotel were receiving wages and bene-
fits below the area standards.
The Union’s representatives distributed an estimated
30 handbills in approximately 30 minutes. The Re-
spondent’s officials then informed the handbillers that
they would have to move to the public property along-
side L’Enfant Promenade. The handbillers complied
with the request. Once on public property, they distrib-
uted approximately 470 handbills to pedestrians. One
representative tried unsuccessfully to give handbills to
the occupants of cars entering the driveway. After 45
minutes, the handbillers left. They did not return.
Applying the balancing test of Jean Country, the
judge first assessed the strengths of the property rights
and Section 7 rights involved in this case. He then
considered the factor of reasonable alternative means
of communication. The judge found that the Union’s
representatives faced no safety hazard and posed no
significant risk of enmeshing neutrals by handbilling
on public sidewalk areas. He concluded, however,
1112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Hudgens v. NLRB, 424 U.S. 507, 522 (1976); Sears, Roebuck &
Co. v. San Diego County District Council of Carpenters, 436 U.S.
180, 206 (1978).
4 We therefore do not rely on the judge’s assessment of the rel-
ative strengths of the property and Sec. 7 rights asserted by the par-
ties.
5 As in Leslie, we assume, without deciding, that the Lechmere
analysis affords the possibility of an exception permitting access to
private property for area standards activity if a union can prove that
an employer’s customers are not reasonably accessible by
nontrespassory methods. Compare Sears, supra at 206 (‘‘Even on the
assumption that picketing to enforce area standards is entitled to the
same deference in the Babcock accommodation analysis as organiza-
tional solicitation, it would be unprotected in most instances.’’); but
cf. John Ascuaga’s Nugget v. NLRB, 968 F.2d 991, 998 (9th Cir.
1992) (inaccessibility exception to the rule that an employer need
not accommodate nonemployee organizers does not apply to at-
tempts to communicate with the general public).
For a complete discussion of Member Cohen’s position on the ap-
plication of Lechmere to area standards activity, see Leslie Homes,
supra at fn. 18.
6 See, e.g., Hutzler Brothers Co. v. NLRB, 630 F.2d 1012, 1017–
1018 (4th Cir. 1980).
‘‘that the General Counsel has shown that the effec-
tiveness of the message that the Union sought to com-
municate to the hotel’s patrons would be substantially
diluted if the Union were to use the proposed alter-
native means of communication,’’ viz, the public side-
walk.
In Lechmere, the Court held that Jean Country
impermissibly recast as a ‘‘multi-factor balancing test’’
the general rule of Babcock & Wilcox permitting an
employer to prohibit nonemployee distribution of
union organizational literature on its property. 502 U.S.
at 538. Babcock’s holding, as reaffirmed in Lechmere,
is that Section 7 does not allow nonemployee union or-
ganizers to come onto private property except in the
rare case where ‘‘the inaccessibility of employees
makes ineffective the reasonable attempts by non-
employees to communicate with them through the
usual channels.’’ Id. Thus, ‘‘it is only where such ac-
cess is infeasible that it becomes necessary and proper
to take the accommodation inquiry to a second level,
balancing the employees’ and employers’ rights.’’ Id.
(Emphasis in original.)
The General Counsel, the Respondent, the National
Retail Federation, and the Council on Labor Law
Equality contend that the Court’s interpretation of Bab-
cock in Lechmere applies to the nonemployees in this
case who were seeking access to the Respondent’s pri-
vate property entrance to engage in area standards
handbilling. The General Counsel argues, however,
that the Respondent’s denial of access to that location
was unlawful even under the Babcock/Lechmere analy-
sis because no reasonably effective alternatives existed
for the Union to communicate its message to the pub-
lic. The Respondent, the National Retail Federation,
and the Council on Labor Law Equality contend that
the General Counsel has failed to prove a lack of rea-
sonable alternative means. The Union and amicus
AFL–CIO argue that the Babcock/Lechmere analysis
involved organizational activity and should not apply
to protected area standards activity. They contend that
more liberal access principles should govern where, as
here, a union is acting on behalf of employees whom
it already represents. Further, they argue, even if the
Babcock/Lechmere analysis does apply, the Respondent
violated the Act because the Union had no reasonable
nontrespassory alternatives for communicating with the
Respondent’s customers.
In Leslie, supra, the Board considered the impact of
Lechmere on nonemployee area standards activity.
After reviewing Lechmere and related Court prece-
dent,3 the Board concluded that the Court intended the
Babcock accommodation analysis to apply in non-
organizational settings. Accordingly, the general rule is
that an employer may prohibit nonemployees from
gaining access to its private property to engage in area
standards activities. No balancing of employee and em-
ployer rights is appropriate unless the union can first
demonstrate that it lacks reasonable access to the em-
ployer’s customers outside the employer’s property.4
We turn then to the question of whether the General
Counsel has proven that the Union had no reasonable
alternative means of communicating with the Respond-
ent’s customers.5 In Lechmere, the Court stated that
the Babcock exception requiring access to private
property by nonemployee organizers applied only in
rare situations where a union confronts ‘‘unique obsta-
cles’’ to nontrespassory communications, as when the
location of a plant and the living quarters of employees
‘‘isolated [them] from the ordinary flow of information
that characterizes our society.’’ 502 U.S. at 539–541.
The Court emphasized that the union’s burden of prov-
ing the exception is a heavy one, which cannot be sat-
isfied ‘‘by mere conjecture or the expression of doubts
concerning the effectiveness of non-trespassory means
of communication.’’ Id. at 540.
We find that the General Counsel has failed to prove
that the Union was unable to communicate with the
Respondent’s customers by handbilling on public prop-
erty adjacent to the Respondent’s premises. The
handbillers made only a token attempt of 45 minutes’
duration to distribute their leaflets in this area. They
were successful in communicating with pedestrians,
but allegedly failed to persuade anyone in vehicles en-
tering the hotel driveway to accept handbills. They did
not make any attempt to handbill vehicles from areas
adjacent to stop signs, where the occupants of stopped
vehicles would presumably have a greater opportunity
to accept the handbills. Absent such efforts, there is in-
sufficient evidence to establish that the Union faced
unique obstacles in communicating with the Respond-
ent’s customers by nontrespassory means.6 Accord-
ingly, we conclude that the Respondent did not violate
1113LOEWS L’ENFANT PLAZA HOTEL
1 All dates are in 1988 unless otherwise indicated.
2 Respondents by letter filed a reply to one aspect of the General
Counsel’s brief, and counsel for the General Counsel was given
leave to file a reply brief which has been received. At the hearing
witnesses marked locations on a diagram of the property which was
received in evidence as Jt. Exh. 1. The copy so marked was lost in
transmission from the court reporter. The parties have stipulated to
its replacement by a copy of the diagram on which some of the
markings (B through F) have been reproduced.
3 Addison Johnson, property manager for L’Enfant, so testified.
The General Counsel contends that Respondents failed to prove that
L’Enfant owns the property because the preamble to the manage-
ment agreement between L’Enfant and Loews states that L’Enfant
is the lessee of the land and L’Enfant failed to put the lease in evi-
dence to establish its property interest. The management agreement
is dated May 27, 1971, and the latest amendment to it in evidence
is dated September 25, 1975. There is no inconsistency between
these documents, which establish the relationship between L’Enfant
and Loews, and the testimony of Johnson as to the ownership of the
property as of the time of the events at issue. I have credited the
uncontradicted testimony of Johnson.
4 There is some confusion in the record as to the exact distance.
As the parties stipulated that the scale of the diagram of the property
received in evidence is 60 feet to the inch, however, I find that the
distance between the entrance and the nearest point on the expansion
joint is approximately 250 feet.
Section 8(a)(1) of the Act by denying the Union access
to handbill on private property at the entrance to the
hotel. We shall therefore dismiss the complaint.
ORDER
The complaint is dismissed.
CHAIRMAN GOULD, concurring,
I join in the dismissal of the complaint in this case.
See my additional comments set forth in my concur-
ring opinion in Leslie Homes, 316 NLRB 123 (1995).
Bruce E. Goodman and Joseph J. Baniszewski, Esqs., for the
General Counsel.
Peter Chatilowicz, Esq. (Seyfarth, Shaw, Fairweather &
Geraldson), of Washington, D.C., for the Respondents.
Joseph P. Stanalonis, for the Charging Party.
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge. This case
was tried in Washington, D.C., on July 18, 1990. The charge
was filed on December 1, 1988,1 and the complaint was
issued on July 28, 1989, and thereafter amended.
The issue in this case is whether Respondents violated
Section 8(a)(1) of the National Labor Relations Act by pro-
hibiting distribution of handbills by representatives of the
Charging Party (Union) at or near the main entrance to Re-
spondents’ hotel.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Respondents,2 I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent L’Enfant Plaza Properties, Inc. (L’Enfant)
owns and Respondent Loews Corporation (Loews) operates
the Loews L’Enfant Plaza Hotel in Washington, D.C. In the
course of the operation of the hotel Respondents annually de-
rive gross revenues in excess of $500,000, and purchase and
receive at the hotel goods and services valued in excess of
$10,000 directly from points located outside the District of
Columbia. Respondents admit, and I find, that they are em-
ployers engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Hotel and Its Environs
The hotel is located in a building complex in Southwest
Washington known as L’Enfant Plaza. Respondent Loews
operates the hotel for Respondent L’Enfant pursuant to a
management agreement. The complex includes four buildings
surrounding an open plaza. Beneath the plaza and the build-
ings is a retail shopping mall. L’Enfant owns the east build-
ing in which the hotel is located, the north building, the open
plaza area between the north and south buildings, building
line to building line, and the retail stores and parking garage
beneath the plaza and the north and east buildings.3 The west
building is separated from the remainder of the complex by
a broad public thoroughfare known as L’Enfant Promenade.
From the Promenade vehicular traffic can reach the plaza
level entrances to the south, east, and north buildings by
means of a one-way service drive which passes in front of
them. There are also walkways next to the drive on which
pedestrians may walk from the Promenade to entrances to the
three buildings. The service drive and the walkways are all
on property owned by L’Enfant. The boundary between the
public thoroughfare and the property owned by L’Enfant is
marked by an expansion joint.
The hotel occupies the plaza level, half of the second
floor, half of the service level, and the top four floors of the
east building. The promenade level is occupied by retail
stores, and the remainder of the 12-story building is occupied
by offices. The main entrance to the hotel is located on the
plaza level facing the service drive. About 40 feet away there
is a second entrance to the building for the offices through
which the hotel can also be reached. The expansion joint
which marks the boundary of L’Enfant’s property is approxi-
mately 250 feet from the main entrance to the hotel.4
B. The Union’s Dispute
In the summer and early fall of 1988 L’Enfant contracted
with Doyle Construction, Inc. (Doyle) to renovate the interior
and exterior of the hotel. Doyle performed the work with
some of its own employees and with subcontractors. In Octo-
ber, Joseph Stanalonis, an organizer for the Union, learned
of the renovation project and visited the hotel. Stanalonis
questioned two employees working on the project and con-
cluded that the carpenters employed by Doyle on the jobsite
1114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Patterson is employed by a private security company which has
a contract with L’Enfant to provide for security in all of the areas
owned by L’Enfant, including the Hotel.
were nonunion and were receiving less than the area standard
for carpenters’ work.
Thereafter, the Union’s secretary-treasurer wrote Doyle
complaining that Doyle’s carpenters were being paid below
the minimum rate set in the Union’s area standard agreement
and threatening that if the Union was not advised that the in-
formation it had received was incorrect, he would inform the
community-at-large that Doyle did not honor area standard
wages and fringe benefits. Doyle did not reply to the letter.
At some point during the latter part of October Stanalonis
telephoned the L’Enfant office and spoke about the matter to
a representative who told him that the owner had picked its
contractor and that if the Union had a problem he should
take it up with the contractor.
C. The Handbilling
On November 21 Stanalonis went to the hotel accom-
panied by Union Representatives Robert Swann and Terry
Milstead. About 11:30 a.m. they started to pass out handbills
in front of the hotel. Swann and Milstead stood approxi-
mately 20 feet from the main entrance to the hotel near the
curb. Stanalonis stood between the main entrance and the en-
trance the office portion of the building.
The handbills were captioned, ‘‘PLEASE DO NOT PA-
TRONIZE LOEW’S L’ENFANT PLAZA HOTEL,’’ and
contained several paragraphs of text. In the first paragraph
the Union set forth its understanding that Loews had chosen
contractors to renovate the hotel who were paying wages and
benefits below the area standard. In the next paragraph the
Union asserted that it could not maintain or improve its
standards if there were employees in the industry who were
paid a lower wage and that the payment of lower wages had
a negative impact on the carpenters and the community as
a whole. After stating that the hotel was not cutting its
prices, the Union asked for the support of the public, and the
leaflet concluded with a disclaimer that the handbill was in-
tended to organize employees, gain recognition for the
Union, cause a work stoppage, or cause anyone to cease
doing business with any other person.
After the handbilling began, an employee of the hotel
came out to get a copy of the handbill which he took back
into the hotel with him. Shortly thereafter Robert Patterson,
director of security for L’Enfant,5 and Thomas Negri, a man-
agement representative of Loews, came out of the hotel and
advised the union representatives that they had to leave the
premises. Patterson told Stanalonis that if they wanted to
continue to handbill, they would have to go to public prop-
erty at the expansion joint. The union representatives com-
plied with the request and went to the expansion joint to con-
tinue handbilling.
During the handbilling at the hotel entrances, which lasted
for about 30 minutes, the union representatives handed out
approximately 30 handbills. They did not block any entrance
and positioned themselves so that they would not interrupt
the flow of people in and out of the hotel. They did not
cause any employee to stop work. All those to whom they
gave handbills appeared to be going to the hotel. None of
the handbills were thrown on the ground.
After the representatives moved to the expansion joint,
they distributed approximately 470 handbills over a period of
about 45 minutes after which they left. Stanalonis and
Milstead stood at the sidewalk which leads to the entrances
to the north and east buildings, the hotel, and the open plaza
area. The sidewalk is also next to the roadway used by cars
exiting the service drive after passing by the building en-
trances. They handed out leaflets to persons walking in the
direction of the hotel. Most of those to whom they handed
handbills appeared to go to an open set of stairs in the Plaza
area which leads to the shopping mall. Stanalonis did not see
anyone to whom he handed a handbill walk as far as the
hotel and enter it. Swann stood at the entrance to the service
drive and tried to hand leaflets to cars entering the drive. No
one stopped to take a leaflet from him. After 45 minutes the
union representatives left the area and did not return again.
D. Concluding Findings
In Fairmont Hotel, 282 NLRB 139, 142 (1986), the Board
propounded a test for balancing the right to engage in activ-
ity protected by Section 7 of the Act against a property own-
er’s right to keep out those whom he has not invited to enter.
[I]t is the Board’s task first to weigh the relative
strength of each party’s claim. 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 compelling, then the
Section 7 right will prevail. Only in those cases where
the respective claims are relatively equal in strength
will effective alternative means of communication be-
come determinative.
In Jean Country, the Board reconsidered the role of alter-
native means in weighing competing claims of Section 7
rights and property rights and concluded ‘‘that the availabil-
ity of reasonable alternative means is a factor that must be
considered in every access case.’’ 291 NLRB 11 (1988).
After enumerating factors that may be relevant in assessing
the weight of the rights invoked and the availability of alter-
native means, the Board concluded:
[I]n all access cases our essential concern will be the
degree of impairment of the Section 7 right if access
should be denied, as it balances against the degree of
impairment of the private property right if access
should be granted. We view the consideration of the
availability of reasonably effective alternative means as
especially significant in this balancing process. In the
final analysis, however, there is no simple formula that
will immediately determine the result in every case. As
the Court made clear in Hudgens, we are trying to ac-
commodate interests along a spectrum. Inevitably, as
we apply our analysis in future cases some patterns will
become more clear. For example, denial of access will
more likely be found unlawful when property is open
to the general public than when a more private char-
acter has been maintained. But, as with other legal
questions involving multiple factors, the ‘‘nature of the
problem, as revealed by unfolding variant situations, in-
evitably involves an evolutionary process for its rational
1115LOEWS L’ENFANT PLAZA HOTEL
6 Jean Country, supra at 16. There is testimony that the area in
front of the entrance was under the exclusive control of the Loews,
but the evidence otherwise indicates that it was under the control of
L’Enfant or the joint control of L’Enfant and Loews. In any case
I find no difference in their interests.
7 There is no evidence to indicate whether carpenters employed by
Doyle were on the premises on the day of the handbilling.
response, not a quick, definitive formula as a com-
prehensive answer.’’ [Id. at 14.]
The General Counsel contends that the threshold issue to
be decided is whether the party which attempted to limit ac-
cess had genuine interests in the property. Here both Loews
and L’Enfant sought to and did limit the access of the Union
to the entrance to the hotel. Although the General Counsel
contends that neither met the burden of proving that it had
interests in the property in front of the hotel building, I have
found above that L’Enfant was its owner. Pursuant to the
management agreement, Loews was the exclusive operator of
the hotel. As such, Loews was L’Enfant’s agent for purposes
of operating the hotel. Thus, L’Enfant has an owner’s interest
in the hotel business which Loews operates and in the entire
property. To the extent that Loews acted in conjunction with
L’Enfant concerning the sidewalk in front of the hotel, its
conduct was also based on a legitimate interest in the prop-
erty.6
In Jean Country, the Board stated that it would consider
the following factors, among others, in weighing property
rights: ‘‘the use to which the property is put, the restrictions,
if any, that are imposed on public access to the property, and
the property’s relative size and openness.’’ Id. at 13.
Here the area in front of the main entrance where Swann
and Milstead stood while passing out handbills is used in
much the same fashion as that in Fairmont, supra. It is a
covered area where those guests and other patrons arrive at
and leave the hotel and where their baggage is loaded and
unloaded. It was estimated that 95 percent of the hotel guests
arrive and leave by car, taxi, or other vehicle and use the
main entrance. The covered area is approximately 35 feet
wide and 20-feet deep. It is a busy area during the morning
and through lunch as hotel guests check out of the hotel up
to the 1 p.m. deadline. At busy times the area can become
congested with people and luggage. In the past there have
been thefts of luggage and cars temporarily left in front of
the main entrance, and there is usually at least one guard
posted in the general area. The area in front of the main en-
trance can also be used by persons walking by the hotel, and
L’Enfant does not try to restrict its use to hotel guests, but
it does try to keep persons from loitering in that area. Nei-
ther of the plaza entrances to the east building is used by the
hotel’s employees or suppliers who are required to use des-
ignated entrances on a lower level.
The area where Stanalonis stood was between the two en-
trances to the building and could have been used by anyone
walking between those entrances or between buildings as
well as by hotel guests.
L’Enfant maintains and enforces a no-solicitation policy
which bars charitable, religious, commercial, and other orga-
nizations from soliciting on its premises. Pursuant to its pol-
icy, L’Enfant has precluded handbilling and solicitation on
numerous occasions. Apart from those restrictions, however,
the general public is invited to patronize the hotel, its res-
taurants, and other businesses located within the L’Enfant
Plaza complex. There is a sign near the entrance to the serv-
ice drive which reads, ‘‘ENTERING PRIVATE PROP-
ERTY—PARKING STRICTLY ENFORCED.’’ There is no
sign on the plaza level to indicate that access is limited or
that distributions are not permitted.
As in Fairmont, supra, Respondents had a valid interest in
the property and in limiting congestion, litter, and the possi-
bility of theft of luggage in the area in front of the hotel en-
trance. The presence of outsiders distributing handbills in the
area would tend to disturb guests entering or leaving the
hotel and to disturb the hotel’s decorum. Unlike Fairmont,
however, the area in front of the entrance was not restricted
to hotel guests or those otherwise having business in the
hotel. The property rights of the hotel in this case are strong
but tempered by the quasi-public use of the sidewalk which
leave Respondents’ property rights weaker than those in
Fairmont. If access to the property were granted, the degree
of impairment of the private property right would have been
limited, due to the quasi-public use of the sidewalk, the num-
ber of union representatives who distributed the handbills,
the locations at which they stood, and the absence of any lit-
ter or interference with the normal flow of traffic at the en-
trance.
Turning to the Section 7 rights being asserted, in Jean
Country, supra at 13, the Board set forth the following fac-
tors, among others, to be considered: ‘‘the nature of the
right, the identity of the employer to which the right is di-
rectly related (e.g., the employer with whom a union has a
primary dispute), the relationship of the employer or other
target to the property to which access is sought, the identity
of the audience to which the communications concerning the
Section 7 right are directed, and the manner in which the ac-
tivity related to that right is carried out.’’
Here, the Section 7 right being asserted was the right to
inform the public that the carpenters employed by Doyle in
renovating the hotel were being paid wages and benefits
below the area standards established by the Union’s collec-
tive-bargaining agreements. Doyle, with whom the Union
had its primary dispute was employed as a contractor on the
hotel premises at the time of the handbilling.7 The commu-
nications were directed at those patronizing or about to pa-
tronize the hotel, and the handbilling was carried out in an
orderly manner by three individuals only two of whom were
standing in the covered area immediately in front of the main
entrance. The three individuals did not block any entrances
to the hotel, did not interrupt the flow of people in and out
of the hotel, and did not cause any employees to stop work.
While area standards activity is a protected exercise of
Section 7 rights, it is protected to a lesser extent than ‘‘activ-
ity that furthers a ‘core’ purpose of the Act.’’ Red Food
Stores, 296 NLRB 450, 453 (1989). Here the handbilling
took place during the time period that employees of the pri-
mary employer were engaged in renovation work at the
hotel, giving greater connection between the Respondents
and the activity than was present in Fairmont, supra, and
‘‘although not on the strong end of the spectrum of Section
7 rights, [the Union’s Section 7] right is also worthy of pro-
tection against substantial impairment.’’ Best Co., 293 NLRB
845, 847 (1989).
1116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Tecumseh Foodland, 294 NLRB 486 (1989); Sentry Markets, 296
NLRB 40 (1989); Sparks Nugget, 298 NLRB 524 (1990). Compare
Red Food Stores, 296 NLRB 450 (1989), wherein the Board found
that the union had an available reasonable alternative when it pick-
eted and handbilled on public property at the perimeters of the stores
and advertised its dispute with the primary employer through the
media.
9 Sentry Markets, supra; Sparks Nugget, supra. In his testimony
Stanalonis questioned whether those arriving at the hotel would no-
tice or pay attention to signs placed so far from the actual entrance
to the hotel and expressed doubt that people who saw them would
stop to read them, asserting that in Washington there were so many
demonstrations that people ignore signs. Stanalonis also testified that
it was more effective to give people a leaflet that they could take
with them and read when they reached their destinations. While
Stanalonis’ experience as a union representative may lend some au-
thority to his observation as to the relative effectiveness of signs and
handbills, his testimony about how or why others react to signs in
Washington seems highly subjective and not entitled to any special
weight.
In determining and weighing the degree of impairment of
the Section 7 right if access were to be denied, it is nec-
essary to consider whether the Union had reasonable alter-
native means to communicate its message. In Jean Country,
supra at 13, the Board set forth the following factors to be
considered among others: ‘‘the desirability of avoiding the
enmeshment of neutrals in labor disputes, the safety of at-
tempting communications at alternative public sites, the bur-
den and expense of nontrespassory communication alter-
natives, and, most significantly, the extent to which exclusive
use of the nontrepassory alternatives would dilute the effec-
tiveness of the message.’’
It is the General Counsel who ‘‘must show that without
access to the property, those seeking to exercise the right in
question have no reasonable means of communication with
the audience that exercise of that right entails. . . . What is
required is simply a clear showing, based on objective con-
siderations, rather than subjective impressions, that reason-
ably effective alternative means were unavailable in the cir-
cumstances.’’ Jean Country, supra at 12.
The General Counsel contends that the only means avail-
able for the Union to communicate its message effectively to
the patrons of the hotel was to distribute its handbills at the
main entrance. To support this contention the General Coun-
sel points to the fact that at the main entrance the three union
representatives distributed approximately 30 handbills to in-
dividuals clearly identifiable as patrons or potential patrons
of the hotel, while during the period of time that they stood
on public property they distributed approximately 470 hand-
bills to persons who may or may not have intended to pa-
tronize the hotel, substantially diluting the Union’s message.
Respondents do not contend that the handbilling on public
property as conducted by the union representatives was a rea-
sonable alternative, but they contend there were other reason-
able alternatives. Specifically, Respondents contend that
handbilling and the display of signs at two points which all
cars entering the service drive must pass constituted reason-
able alternative means of communicating with the hotel’s pa-
trons.
Most, perhaps as many as 95 percent, of those coming to
the hotel arrive by car, taxi, limousine, or other vehicle. Most
of the vehicles coming to the hotel come south on L’Enfant
Promenade and make a left turn into the service drive. The
north and south bound lanes of L’Enfant Promenade are sep-
arated by a broad median strip. There is an opening in the
median strip at the place where cars make the left turn, and
there is a stop sign on the adjacent median strip where cars
enter the north bound lanes to cross them. Thus, all cars
turning left must stop before crossing the north bound lanes.
Respondents contend that the Union could effectively com-
municate its message to those approaching the hotel from the
north by displaying signs and handbilling at the stop sign.
The remaining vehicles going to the hotel approach either
from the northbound lanes of L’Enfant Promenade or from
a ramp which comes from a lower level and ends at the en-
trance to the service drive. There is a small paved island on
public property between the ramp and the northbound lanes
of L’Enfant Promenade at the entrance to the service drive.
There is a stop sign at the end of the ramp, and cars coming
up the ramp must stop before turning into the drive. For
those making a right turn from L’Enfant Promenade there is
no stop sign. Respondents contend that the paved area adja-
cent to the stop sign at the end of the ramp is the other loca-
tion where the Union could effectively communicate its mes-
sage to those approaching from the south.
Posting persons with signs and handbills at the locations
suggested by Respondents would not place them in any
physical danger and would not place any undue burden or
expense upon the Union. Moreover, the risk of enmeshing
neutrals in the dispute appears to be limited. Employees and
suppliers of the hotel do not use the service drive or the
plaza level to enter the building. Many of the employees who
work in the office portion of the east building and in the
north and south buildings arrive by public transportation or
by car. They park in the garage levels and go to their offices
without passing the proposed location of those with signs
and handbills. Insofar as the record shows, the only others
who would pass the proposed locations on their way to the
three buildings which front on the service drive are visitors
to the offices, employees in the offices who might be
dropped off at the building entrances or arrive on foot, and
possibly some pedestrians going to the stairs which go down
to the shopping mall located in the plaza area. While those
arriving by vehicle might be exposed only to the signs and
miss the identity of the target of the protest, those arriving
on foot would be more likely both to read the sign com-
pletely and to take and read the handbills if concerned about
the purpose of the signs. Although there is the possibility of
enmeshing neutrals through the impact of the signs on those
arriving at the office buildings by car, based on the record
it cannot be said that the General Counsel has shown that
there would be any substantial enmeshment of neutrals if this
alternative means of communication were used.
Most significant in the Board’s Jean Country analysis is
the extent to which the exclusive use of the alternative means
of communication would dilute the effectiveness of the
Union’s message. As noted by the Board in other cases, the
Union’s message could not be conveyed in its entirety on
signs and would be necessarily reduced to a bare outline.8
Although handbills can carry the entire message, it is un-
likely that all those coming to the hotel in private cars would
stop long enough to open a car window and take a handbill,
and those arriving by taxi, limousine, or bus would be even
less likely to receive them.9 Therefore, I conclude that the
General Counsel has shown that the effectiveness of the mes-
1117LOEWS L’ENFANT PLAZA HOTEL
10 Respondents contend that the audience at which the Union’s
protest was directed was the public at large, as indicated in the
Union’s letter to Doyle, and that another reasonable alternative for
the Union was to handbill and/or picket at Doyle’s premises and
other premises where Doyle was working. When the primary em-
ployer is presently working at the secondary employer’s premises,
however, the Board has not required the General Counsel to show
that a union is unable to communicate its protest against a primary
employer at other locations. Compare Best Co., 293 NLRB 845
(1989), with Federated Department Stores, 294 NLRB 650 (1989);
Hardee’s Food Systems, 294 NLRB 642 (1989); and Homart Devel-
opment Co., 286 NLRB 714 (1987). As Doyle was engaged in ren-
ovation work at Respondents’ premises at the time that the Union
sought access, I find that General Counsel’s burden of proof did not
require a showing that the Union was unable to communicate its
protest to the public at locations other than the hotel. While the
Union’s purpose generally may have been to communicate with the
public at large, the patrons of the hotel were a distinct segment of
the public patronizing a facility at which Doyle was working.
Handbilling or picketing elsewhere would not reach this segment. If
Doyle were through with its work at the hotel or had merely worked
for Respondents at locations other than the hotel, the patrons of the
hotel would have no greater relation to the work being performed
by Doyle than the members of the public who could be reached at
other locations, and the ability to communicate with the public at
other locations would become determinative.
sage that the Union sought to communicate to the hotel’s pa-
trons would be substantially diluted if the Union were to use
the proposed alternative means of communication.10
Although I have found above that the Respondents prop-
erty rights are relatively strong, I have also found that they
were tempered by the quasi-public nature of the use of the
sidewalk in front of Respondent’s main entrance and that the
impairment of Respondent’s property rights was not substan-
tial given the fact that interference with Respondents’ busi-
ness activity at the main entrance was minimal. Conversely,
I have found that although the Union’s Section 7 rights were
not core rights and were relatively weak, if the Union were
denied the right to handbill in front of the main evidence and
required to move its protest to public property, its message
would be substantially diluted and therefore the Union’s Sec-
tion 7 rights would be impaired. Accordingly, I find that by
requiring the union representatives to leave Respondents’
property, Respondents violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondents are employers engaged in commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2 (5) of the Act.
3. By ordering Union Representatives Stanalonis, Milstead,
and Swann to leave their property in front of the Loews
L’Enfant Plaza Hotel, Respondents interfered with the exer-
cise of Section 7 rights in violation of Section 8(a)(1) of the
Act.
[Recommended Order omitted from publication.]