New Pines, Inc.

National Labor Relations Board - Board Decisions

Jul 8, 1971

191 N.L.R.B. 944 (N.L.R.B. 1971)

944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New Pines , Inc.' and Local 343, Hotel & Restaurant
Employees & Bartenders International Union,
AFL-CIO. Case 3-CA-3914
July 8, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND BROWN
On November 30, 1970, Trial Examiner Bernard J.
Seff issued his Decision in the above-entitled proceed-
ing, finding that Respondent had not engaged in the
unfair labor practices alleged in the complaint and
recommending that the -complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel and the
Charging Party filed exceptions to the Trial Examiner's
Decision together with supporting briefs; Respondent
filed a brief in response thereto.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in the case, and hereby adopts the
findings,' conclusions, and recommencations of the
Trial Examiner only to the extent consistent herewith.
The Trial Examiner found that Respondent did not
violate the Act when it refused to grant nonemployee
union organizers access to its premises so that they
might distribute literature and solicit membership
among its employees; and that Respondent's interroga-
tion of employee Bernard Doitch was de minimis. For
the reasons stated below, we agree with the General
Counsel's exceptions to these findings.
Respondent operates the Pines Hotel which is open
year round and provides rooms, food, beverages, and
entertainment for as many as 900 guests. The hotel
consists of a number of buildings situated on approxi-
mately 250 acres adjacent to Laurel Road, a public
thoroughfare which borders one side of the hotel prem-
ises. A fence extends a few hundred yards along Laurel
Road on either side of the main entrance which leads
into the hotel grounds and to various parking lots.
Respondents' name appears as amended at the hearing.
The General Counsel excepts to certain credibility findings made by the
Trial Examiner It is the Board's established policy, however, not to overrule
a Trial Examiner's credibility findings unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 363 (C A 3) We find
no basis for disturbing the Trial Examiner's credibility findings in this case.
Across Laurel Road, opposite the hotel's main en-
trance, is a complex of nine buildings known as the
Riverdale. Respondent does not own this property but
rents the Riverdale from its owner. The record indi-
cates that the entrance to the Riverdale extends for the
entire length of that property and that there is
unimpeded access from Laurel Road. While the hotel
premises are protected by a security force and the main
gate is often guarded, the security force enters the
Riverdale only if there is a fight or a fire on the prem-
ises. At the hearing, Respondent stated that while it
enforces a rule against nonemployee solicitation on the
hotel premises, the rule does not apply to the Riverdale
buildings.
The Union began its campaign to organize Respond-
ent's employees in late June or early July 1969. Organ-
izer Alfred Vezina, who was assigned to conduct the
campaign during the summer, substantially confined
his efforts to distributing handbills and cards in front
of the hotel's main gate on Laurel Road. He met with
little success. On August 15, 1969, the Union submitted
the first of six requests for access to the hotel's prem-
ises.' All were denied.
On September 29, 1969, Richard Kazansky assumed
control of the Union's campaign. In October and
November Kazansky distributed literature and author-
ization cards on Laurel Road 2 or 3 days a week; he
visited diners, bars, and restaurants in the area in
search of Respondent's employees on 15 or 20 occa-
sions. Kazansky visited various employees at their
homes and attempted, without success, to arrange
larger employee meetings. In October and November
he entered Respondent's premises a number of times
and distributed literature and authorization cards in
the staff houses and the adjacent areas. After he had
been detected and warned on two separate occasions,
Kazansky was arrested on Respondent's premises for
trespassing. Kazansky's records, which he submitted to
the Union for expenses, indicate that he was active in
the campaign to organize Respondent's employees on
58 days between September 29 and December 23, 1969.
From July 1 to December 31, 1969, Respondent em-
ployed a total of 1,047 persons.' The maximum comple-
ment employed at any one time was 380 (during July,
August, and September), and the minimum was 90 to
100 (during the week at other times of the year); 250
were employed on other weekends, and 160 to 170 were
employed when Respondent hosted a convention.
Respondent provides rooms and meals for all em-
ployees who want them, but the location of the rooms
so provided varied during the Union's campaign. In
' The Union requested access on August 15, September 30, October 8,
11, and 30, 1969, and February 16, 1970.
' Only 175 of these employees were employed for 52 weeks of the year;
approximately 30 to 40 of this number were management representatives
191 NLRB No. 144
NEW PINES, INC.
July, August, and September, 1969, 12 K to 20 percent
of Respondent's employees lived in rooms on the hotel
premises, while from 30 to 37 K percent lived at the
Riverdale.' After October 1, 1969, 40 percent of Re-
spondent's employees lived in rooms on the hotel prem-
ises on weekdays, and 50 percent were so accom-
modated during the weekends. The Riverdale buildings
were closed from October 1, 1969, through May 1,
1970, except on rare occasions when the hotel was
crowded and employees were temporarily housed
there.
In N.L.R.B. v. The Babcock & Wilcox Company, 351
U.S. 105, the Supreme Court pointed out that, while an
employer may ordinarily protect his property by pro-
hibiting nonemployee distribution of literature thereon,
the right of the employees to organize, with outside
assistance, is also protected by law. In elucidating the
general rule, the Court stated that:
[W]hen the inaccessibility of employees makes
ineffective the reasonable attempts by nonem-
ployees to communicate with them through the
usual channels, the right to exclude from property
has been required to yield to the extent needed to
permit communication of information on the right
to organize.6
Specifically, the Court stated that:
... if the location of a plant and the living quar-
ters of the employees place the employees beyond
the reach of reasonable union efforts to communi-
cate with them, the employer must allow the union
to approach his employees on his property.'
We find that Respondent violated Section 8(a)(1) of
the Act by refusing to grant the Union's requests for
access.
As noted above, between July and September 1969,
12K to 20 percent of the employees lived on the hotel
premises. After October 9, 1969, at least 40 percent of
Respondent's employees lived in rooms on the guarded
hotel premises during the week, and 50 percent of the
employees lived on the hotel premises on weekends.
During this period, organizer Kazansky made the vig-
orous efforts detailed above to communicate with or to
establish contact with Respondent's employees, and
Respondent rejected four requests by the Union to be
granted access, even though a large segment of Re-
spondent's employees were so housed as to be inaccessi-
ble to the Union despite its strenuous efforts at com-
munication.
6 These figures are based upon the testimony of Respondent 's general
manager, Jerome Ehrlich , who testified that during July, August , and Sep-
tember, 1969 , 50 percent of the employees lived in rooms provided by
Respondent and that 60 to 75 percent of the resident employees lived at the
Riverdale while the remainder of the resident employees lived in rooms on
the hotel premises.
6 351 U.S. 105, 112
1 Id at 113.
945
Nor is there any indication that resident employees
left the hotel premises at regular or frequent intervals.
On the contrary, because they worked 2- or 3-hour
shifts with short free periods in between,' and had ac-
cess to various facilities on the hotel premises,9it ap-
pears that to these employees, as to those in S. & H.
Grossinger's, Inc.,10 the hotel was "home," the place
"where they ate, slept, rested, labored, and attended to
other daily chores of life."" The chances were slight for
contacting these employees on their rare visits to the
small neighboring communities, when they would pre-
sumably be out of uniform and therefore difficult to
identify, as Kazansky's experience demonstrated.
The Union had no effective method of communicat-
ing with Respondent's resident employees while they
were on the hotel premises. Lacking physical access to
the premises, the Union could not distribute literature
or speak to these employees at their residences nor
could it approach them as they traveled between their
residences and their work stations in the hotel. There
is no indication that the resident employees had tele-
phones in their rooms and, at any rate, without knowl-
edge of their names and room assignments , telephoning
these employees was impossible.12 There is no evidence
that advertisements in such local newspapers, radio,
and television as existed would reach this segment of
Respondent's complement, who doubtless had little
contact with the neighboring towns which are served
by those medial'
The channels of communication available to the
Union here were even more restricted than those avail-
able in Kutsher's Hotel & Country Club, Inc., 14 in which
the Board found that the employer violated Section
8(a)(1) of the Act by refusing to grant the union access
to its premises. In Kutsher's, the court found that some
95 percent of the employees could be contacted as they
crossed a public road between their year-round resi-
dences and their work stations; in the instant case,
during most of the year, the Union, despite more
strenuous efforts than those exerted in Kutsher's, had
8 Many employees, especially those connected with the kitchen or dining
room, worked staggered shifts which left them such short periods of free
time during the day as to discourage trips away from the premises.
' All employees could eat three meals a day on the premises, shop at
stores there, and use Respondent 's extensive recreation facilities (including
indoor swimming pool and ice rink, golf course , and ski slopes) when they
were not crowded with guests.
0° 156 NLRD 233, enfd. 372 F 2d 26 (C.A. 2, 1967).
156 NLRB at 256.
An internal "telephone directory" apparently did not exist. Although
the Union did not request a list of names and addresses of resident em-
ployees during its campaign, Respondent 's general manager testified that
Respondent did not keep records of specific room assignments.
13 Accord, Tamiment, Inc., 180 NLRB No. 171. The record indicates the
existence of a situation similar to that in Grossinger 's, supra, where the court
of appeals stated at p. 29, that: "Radio and newspaper advertising are expen-
sive and relatively ineffectual. Moreover as far as radio is concerned, there
was no single time at which major proportion of employees would be off duty
and free to listen to a message broadcast by the Union."
14 175 NLRB No 76, enforcement denied 427 F.2d 200 (C.A 2, 1970).
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no effective means of communicating with the 40 to 50
percent of the employees who lived on Respondent's
premises.
We also note that , as the Trial Examiner found,
Respondent has failed to show that any detriment
would accrue to it if it granted , under reasonable condi-
tions , the Union 's request for access to its hotel prem-
ises.
In all the circumstances , therefore, we find that Re-
spondent violated Section 8(a)(1) of the Act by denying
the Union access to its premises for organizing pur-
poses inasmuch as a substantial number of its em-
ployees were beyond the reach of other reasonable
efforts to communicate with them.
The record also establishes that , in the course of a
telephone conversation in November or December
1969 , Respondent's General Manager Ehrlich asked
busboy Bernard Doitch whether Doitch had signed an
application for union membership , and warned Doitch
that he (Ehrlich) would soon see the card as it would
have to be produced in a trespass case pending against
Union Organizer Kazansky . By this conduct , Respond-
ent coercively interrogated Doitch in violation of Sec-
tion 8(a)(1) of the Act. Cedar Hills Theatres, Inc., 168
NLRB 871 . Unlike the Trial Examiner , we do not think
that this conduct was de minimis and we shall issue the
appropriate remedial order.
THE REMEDY
Having found that Respondent has engaged in cer-
tain unfair labor practices , we shall order that it cease
and desist therefrom and take certain affirmative ac-
tion.
Having found that Respondent unlawfully denied
representatives of the Union permission to come upon
its premises even though a substantial segment of its
employee complement was housed on its premises, Re-
spondent will be required to grant the Union access to
its premises , except that such access may be reasonably
regulated by Respondent.
CONCLUSIONS OF LAW
1. By refusing to permit representatives of the Union
to come upon its premises to discuss the Union with
employees Respondent interfered with , restrained, and
coerced its employees in the exercise of rights guaran-
teed them by Section 7 of the Act, and thereby engaged
in and is engaging in unfair labor practices proscribed
by Section 8(a)(1) of the Act.
2. By asking employee Bernard Doitch whether he
had signed a union authorization card and warning
Doitch that it would soon see the card , Respondent
restrained and coerced Doitch in the exercise of rights
guaranteed him by Section 7 of the Act , and thereby
engaged in and is engaging in unfair labor practices
proscribed by Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended , the Nation Labor Relations
Board hereby orders that the Respondent, New Pines,
Inc., South Fallsburgh, New York , its officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Denying nonemployee union organizers access to
its employees residing on its premises , for the purpose
of soliciting them during their free time on behalf of the
Union, or consulting, advising , meeting, or assisting
said employees in regard to their right to self -organiza-
tion , except that access to its premises for said purposes
may be reasonably regulated.
(b) Coercively interrogating employees concerning
their union affiliation or activities.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights to self-organization , to bargain collectively
through representatives of their own choosing, to en-
gage in concerted activities for the purposes of collec-
tive bargaining or other mutual aid or protection, or to
refrain from any and all such activities , except to the
extent that such rights may be_ affected by an agreement
requiring membership in a labor organization as au-
thorized by Section 8(a)(3) of the National Labor Rela-
tions Act, as amended.
2. Take the following affirmative action found neces-
sary to effectuate the policies of the aforesaid Act:
(a) Post at its premises at South Fallsburgh, New
York, copies of the attached notice marked "Appen-
dix."" Copies of said notice, on forms provided by the
Regional Director for Region 3, after being duly signed
by its authorized representative, shall be posted by it
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter , in conspicuous
places, including all places where notices to employees
are customarily posted . Reasonable steps shall be taken
by it to insure ' that said notices are not altered , defaced,
or covered by any other material.
(b) Notify the Regional Director for Region 3, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
" In the event that 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 National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NEW PINES, INC. 947
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, subject to reasonable rules and regu-
lations , allow representatives of Local 343, Hotel
& Restaurant Employees & Bartenders Interna-
tional Union , AFL-CIO, and other labor organi-
zations , not employed by us access to our premises
for the purpose of soliciting our employees who
reside on our premises , during their free time, on
behalf of a union , or consulting, advising, meeting,
or assisting our employees during their free time,
in regard to their right to self-organization. All
rules and regulations to the contrary , heretofore
issued or promulgated by us , have been revoked.
WE WILL NOT coercively interrogate employees
concerning their union affiliation or activity.
WE WILL NOT in any like or related manner
interfere with our employees in the exercise of
their rights to form , join , or assist a labor organi-
zation, to bargain collectively through representa-
tives of their own choosing, to engage in concerted
activities for the purposes of collective -bargaining
or other mutual aid or protection or to refrain
from such activity , except to the extent that such
rights may be affected by an agreement requiring
membership in a labor organization , as authorized
by Section 8(a)(3) of the National Labor Relations
Act, as amended.
All our employees are free to become or remain or
to refrain from becoming or remaining members of
Local 343, Hotel & Restaurant Employees & Bartend-
ers International Union , AFL-CIO, or any other labor
organization.
NEW PINES,
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's
Office, Seventh Floor, Drislane Building, 60 Chapel
Street, Albany, New York 12207, Telephone 518-472-
2215.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF, Trial Examiner : Upon a charge of un-
fair labor practices filed by Local 343 , Hotel & Restaurant
Employees & -Bartenders International Union , AFL-CIO,
herein called the Union, on October 24, 1969, alleging that
Respondent had violated Section . 8(a)(1) of the National La-
bor Relations Act, herein called the Act, by refusing to grant
access to nonemployee union organizers to distribute union
literature to Respondent 's employees on Respondent 's prop-
erty . Pines Hotel is referred to as the "Hotel." Respondent
filed an answer admitting that it had refused to grant access
to nonemployee organizers as alleged , but denying the com-
mission of any unfair labor practices . Hearings were held in
both South Fallsburgh and Sacket Lake, New York, on vary-
ing dates , June 10 and 11 and again on October 7 and 8,
1970.' Subsequent to the hearing, General Counsel and Re-
spondent filed briefs which have been carefully considered.
On the basis of the entire record, and from my observation
of the demeanor of the witnesses , I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent has maintained its principal office and place of
business at South Fallsburgh, New York, herein called the
Resort Hotel , and is, and has been at all times material herein,
continuously engaged at said location and Resort Hotel, in
the business of operating a hotel and providing rooms, food,
beverages , and entertainment services and related services to
guests. The Respondent's Resort Hotel located at South
Fallsburgh, New York, is the only facility involved in this
proceeding.
During the past year , Respondent , in the course and con-
duct of its business operations , received gross revenues in
excess of $500,000 . During thesame period , Respondent pur-
chased goods and materials valued in excess of $50,000, of
which goods and materials valued in excess of $50,000 were
transported to said Resort Hotel directly or indirectly from
States of the United States other than the State of New York.
Respondent is an employer as defined in Section 2(2) of the
Act, engaged in commerce as defined in Section 2(6) and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization as defined in the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. The setting
The Pines Hotel is situated on a plot of land of approxi-
mately 250 acres. The premises are not fenced in at the en-
trance or the exit. Fifty percent of the grounds owned by the
Hotel are fenced in on Laurel Road. This fencing goes to the
end of the parking lot.
The Hotel itself consists of a number of buildings located
on Laurel Road which is at right angles to Route 42 which
is a main highway. The Hotel is located about a half a mile
from Route 42. The road alongside the Hotel is a public
thoroughfare.
' All dates refer to 1970 unless otherwise specified.
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The busiest times for the Hotel are on weekends, July and
August, Christmas holidays, and the Passover holidays. Dur-
ing the peak of its business the Hotel houses from 700 to 900
visitors and the latter figure represents the maximum capacity
of the Hotel. The guest population varies widely and reaches
its highest crescendo during the holidays listed, supra.
The town closest to the Hotel is at South Fallsburgh, which
is about a half a mile away. Route 42 is the main thoroughfare
which goes from Monticello to Woodburne which latter place
is about 3 miles from the Pines.
There are three entrances to the, Hotel. The parking lot is
about 450 feet from the main entrance. The guest population
fluctuates from 200 to 400 during less than peak holiday
periods. When the Hotel is entertaining weekend conventions
the range of guests is from approximately 700 to 800 people.
During quiet periods the number of residents falls down to
as low a point as from 20 to 30 guests. The Hotel operates on
a year-round basis.
Across the street from the main entrance to the Hotel there
is a complex of buildings known as Riverdale. The entrance
to Riverdale covers the entire length of the property; it is
possible to walk off the road onto the Riverdale property at
three different places. There are driveways that lead into
Riverdale, one of which is opposite the Pines main entrance.
The premises at Riverdale, during the busy periods, are used
for Pines' staff and employees.
There is a direct relationship between the number of em-
ployees employed by the Respondent and the varying guest
population depending upon the time of year. During max-
imum occupancy the employees' entire payroll consists of
approximately 380 employees. During weekends there may
be about 250 employees. Even in times when there are a small
number of guests the Pines might employ 90 or 100 people
of which approximately 30 or 40 are clearly management
representatives.
The Riverdale complex consists of nine different buildings
whose principal use is to house employees. These buildings
are rented from an individual named Seymour Friend who
owns the property.
The employees who live either on the property itself or in
the buildings located across the road have rent and food for
their lodging deducted from their pay. Some employees live
off the premises in their own homes; even in cases where the
employees live in their own homes the Respondent sometimes
provides a room for them to rest in. In such cases the em-
ployees do not pay rent for the use of a room. There is no
dispute over the fact that over 50 percent of Respondent's
employees live on the premises.
The employees are recruited from the New York State
Employment service, the Lewis Employment Agency in New
York, Dependable Agency in Monticello, Sullivan County
Community College, the South Fallsburgh High School; and
some are referred by friends of the present employees.
For the most part, during the busy times of the year, the
live-in employees occupy from seven to nine buildings across
the road from the Respondent's main premises. Approx-
imately160 to 180 employees live in these buildings. The
employees have access to the recreational facilities when
these are not being used by the guests. For the most part, the
employees do not use the Hotel's facilities at night.
The following represents a cross-section of the various
categories of employees employed by the Respondent: bus-
boys, waiters, tray carriers, dishwashers, kitchenmen, maitre
d's, captains, chefs, cooks, potwashers, and porters. The
housekeeping department includes maids, housemen, and
porters. The Respondent also has in its employ bellhops, desk
people, security employees, an, athletic staff, camp staff, and
a nightclub staff.
The dining room is open for breakfast from 8 to 10 a.m.;
lunch from 1 to 2 p.m.; and dinner from 7 to 8 p.m. Dining
room personnel work in the morning from approximately
7:30 until 8 a.m. Some stay on the hotel premises from 15 to
45 minutes to clean up and usually find themselves still work-
ing until approximately 10 a.m.
Dining room employees eat in the dining room from 12
noon to 12:30 p.m. Evening room employees eat at 6:30 p.m.
Kitchen employees work from 6 a.m. to 7 a.m. but this work-
ing time varies depending upon the number of guests who are
in residence at a given time. The employees do not uniformly
work an 8-hour day. Housekeeping employees work about 7
hours a day starting at 8 a.m. Housemen and porters work
from 8 a.m. to 4:30 p.m. Bellhop employees work from 8 a.m.
until midnight. They usually perform their services over a
7-and-a-half-hour day.
Security employees do carry arms. Their principal function
is to watch out for fires and keep order on the premises.
It is significant to note that security employees do not
provide security to the premises across the street in the River-
dale complex. They only go there if there is a fight or a fire.
Anybody may come on the premises but all soliciting on
the property is forbidden.
Bellhops and dining room employees wear uniforms con-
sisting of red jackets -for the waiters; red jackets with black
pants for the busboys; and red aprons for the waitresses.
Kitchen help wear white clothing; maids wear black and
sometimes white clothes; security guards wear uniforms and
for the most part are hired from the nearby Napanoch Prison.
As a rough rule of thumb Respondent employs approxi-
mately one waiter for each 24 guests; one maid for 15 guest-
rooms; 16 bellhops; 20 employees in the bar. These figures
vary with the number of guests. Bar employees are part-time
workers who for the most part go home and are on the
premises only during periods when their services are re-
quired.
2. The Union's organizational campaign and its efforts to
communicate with employees of the Pines Hotel
The General Counsel's first witness was a union organizer,
Alfred Vezina. Vezina testified that he stood outside the main
gate at the Pines 5 days a week starting in July 1969. He
continued his efforts to distribute literature outside the plant
July, August, and September. He testified that on many other
occasions he went to restaurants, diners, and bars in South
Fallsburgh. During the entire time that he engaged in organi-
zational efforts Vezina said he talked to three or four people.
During all this time his principal effort consisted of attempt-
ing to distribute handbills and application-for-membership
cards to people who drove up to the main entrance of the
Hotel as they turned onto the premises.
It is significant to point out that according to the testimony
of Vezina he never saw any people cross the road from the
Riverdale complex to report for duty on the Pines property.
In fact, he said he did not know this property was used for
the purpose of housing employees who lived and worked at
the Pines. In view of the fact that Vezina testified he spent
from as much as from 3 to 4 hours a day attempting to
distribute literature it is patently inconceivable that he never
saw any employee come from Riverdale and cross the road
to the Pines. In addition to handing out application cards
Vezina said that years ago he was employed at the Concorde,
a larger hotel in the neighborhood, and at Grossinger's
(located some miles away from the Pines) he talked to a
number of people whom he knew from his days at the Con-
corde and requested them to give him the names and ad-
dresses of the employees so that he could communicate with
them. For the most part people driving cars did not accept
NEW PINES, INC.
the pamphlets and other literature that Vezina attempted to
pass out. His efforts were unsuccessful and he reported to his
superiors that he was making very little progress.
In view of the futility of his efforts, Vezina and another
organizer named Kazansky come to the Hotel and asked to
speak to the hotel manager, Jerry Ehrlich. They requested
Ehrlich to give them permission to come on the property and
interview employees in an effort to stimulate interest among
them to join the Union. After the first request Ehrlich said
he would have to communicate with his attorney. When
Vezina and Kazansky returned Ehrlich told them that he had
spoken to his lawyer and that his instructions were not to
permit any organizational efforts to be made on the property
and that if any one was found on the premises he would be
summarily ejected. In addition to the direct oral request of
Ehrlich to permit the Union' s organizers to come on the
premises the Union wrote a series of letters to Ehrlich and
Respondent refused in writing to permit entrance on its prop-
erty, its denial being included in a number of letters written
from the Hotel to the Union. Vezina also attempted to set up
a union meeting but none of Respondent's employees came
to the meeting.
It is significant to note that the Union did not communicate
with potential members among Respondent's employees by
mail. It was explained that this was impossible because the
Union did not know the names (especially last names) of the
employees or their addresses.
Some few visits and telephone calls were made to the em-
ployees at their homes. The use of newspapers, radio, and
television or the purchasing of ads in the local newspaper
were not employed by the Union. Organizational efforts were
almost completely limited to attempts to physically handbill
the employees and talk to them whenever this was possible.
According to Vezina very few of the employees were willing
to stop and be seen talking to him.
On one occasion when Vezina and Kazansky attempted to
go on the property and distribute literature to whatever em-
ployees were living within the confines of the Pines property
proper they were warned by Ehrlich not to continue these
efforts and were told that they were trespassers and if caught
again they would be arrested. The very next day both of them
appeared on the property, attempted to distribute literature,
were found engaging in this activity, and were removed from
the premises by the police who arrested them.
_ It should be noted that the Respondent maintains pre-
sumptively legal rules against solicitation during working
time and distribution of literature on the premises.
B. Analysis, Additional Findings, and Conclusions
This case involves the legal issue of access. Trial Examiner
George J. Bott in his Trial Examiner's Decision involving the
Falk Corporation, Case 30-CA-1226, has succinctly set forth
the legal requirements that would be required in order to
sustain the allegations of the complaint.
In order to sustain the allegations of the complaint
that Respondent interfered with, restrained and coerced
its employees by refusing to grant access right to nonem-
ployee union organizers to distribute union literature or
to otherwise disseminate union information to Respond-
ent's employees on [the property of the Pines Hotel, the]
General Counsel must establish that the Union is unable
by reasonable efforts through other available channels of
communication to reach the employees with its message.
If, as the Court said at [one] point in Babcock & Wilcox,
[N.L.R.B. v. The Babcock & Wilcox Company, 351 U.S.
105, 112 and 113,] "the location of a plant and the living
quarters of the employees place the employees beyond
the reach of reasonable union efforts to communicate
949
with them, the employer must allow the union to ap-
proach his employees on his property."
I find on the basis of the whole record that it has not been
shown by a preponderance of the evidence that the Union
cannot communicate with Respondent's employees effec-
tively by the use of certain techniques and avenues, including
the use of radio, television, newspaper articles, or advertise-
ments, and a more vigorous effort to distribute literature
among the employees as they come into work everyday. The
Union did not exercise what the Court chooses to call "rea-
sonable efforts" to reach the employees and attempt to invite
them to join the Union.
First of all it is especially significant to point out that the
record is barren of any indication that the Union attempted
to handbill those employees of Respondent who lived in the
Riverdale complex immediately across the road from the
location of the Pines Hotel. The Company testified without
contradiction that it made no effort to police the grounds of
Riverdale and it was stated on the record that at varying
times when the Hotel was busy as many as 150 of the Re-
spondent's employees lived in the Riverdale complex.
It is also clear that the efforts made to organize the em-
ployees by the union representatives were at best minimal.
While these efforts might not have been successful the fact
that they were not made on a energetic basis precludes any
finding that access to the employees could only be had by
securing permission from the Company to come onto the
premises and discuss unionization with the employees. It
could hardly be said that it was unreasonably difficult to
reach many of the employees off company property and this
is especially so in view of the fact that so many of them lived
in the housing provided for them at Riverdale. It cannot too
strongly be emphasized that in order to communicate with
those employees who lived at Riverdale all that was necessary
was that they cross the road from the Pines on to the River-
dale property. It is not refuted by the Union that the Com-
pany did not police this property nor were security guards
found attempting to prevent people from coming on these
premises.
The situation in the instant case bears no resemblance to
the facts established in the Babcock and Wilcox matter ad-
verted to supra Thus, my conclusion is that there were avail-
able to the Union alternative means of communication which
appear to be essentially equal to those deemed adequate by
the Supreme Court in the Babcock and Wilcox case.
It is further to be underscored that the testimony of Vezina
with respect to the fact that he never knew any of the Com-
pany's employees resided on the Riverdale property is incred-
ible. Many of the employees wore distinctive uniforms that
were easy to identify.
It should also be noted that the union organizer testified
that direct contact with individuals and group meetings is the
best way to communicate with employees, yet the record
shows that the Union had no meeting place in the vicinity of
the Hotel and attempted to arrange only one meeting of
employees . Somehow despite the inefficiency of their efforts
it was testified to by Kazansky that application-for-member-
ship cards were received at the union headquarters from
approximately 68 of the Company's employees. A petition for
representation was filed by the Union but the Board dis-
missed the petition on the ground that at the time it was made
the showing of union cards did not represent a 30-percent
interest of the eligible employees.
Nor is it understandable that the purchase of a full-page ad
in the local newspapers, while it may have appeared to be
expensive, would very likely have at least been seen by most
of the employees. If they were interested in joining the Union
there was nothing to prevent them from taking such action.
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is also difficult to understand how it is possible for the
Union to have stated through the testimony of Vezina that it
was unable to secure the names and addresses of more than
a handful of employees. If, in fact, Vezina was able to distrib-
ute literature to three or four people during a 4-month period
of so-called organizational-efforts there must have been some-
thing seriously wrong with the approach used by the organ-
izer.
Both the General Counsel and Respondent devoted some
space in their briefs to one alleged incident of interrogation.
This involves a phone conversation which took place between
Respondent's manager, Ehrlich, and a 16-year-old busboy
named Bernard Doitch. It was not denied on the record that
a phone conversation did in fact take place in the course of
which Ehrlich asked Doitch if he had signed an application
for union membership. Futher Ehrlich told Doitch that he
could contact the union office and request that the card could
either be destroyed or he could get it back.
It is significant that this single isolated incident occurred
against a background utterly devoid of animus directed
against the Union, was not threatening in the way it was
made, and appears to be too trivial to warrant extended treat-
ment. I find that the so-called interrogation was de minimis
and would not justify a remedial order. Under these circum-
stances, absent other independent 8(a)(1) activity, and exist-
ing as it does as a single isolated instance, it is not worthy of
remedial action.
There is conflicting testimony that employees were permit-
ted to use the parking lot of the Riverdale complex but the
General Counsel contends that this place is limited in space
and inadequate to house more than approximately 15 cars.
Respondent's testimony, which was not contradicted, is that
during the peak of summertime and holiday activity River-
dale did house approximately 150 employees. The major
thrust of the Union's organizational efforts took place be-
tween June and September. There is uncontroverted evidence
that many of the employees wore conspicuous uniforms and
repeatedly crossed Laurel Road at varying times from morn-
ing until night. Vezina testified that he did not even know that
any of the employees lived in Riverdale rooms, and he never
saw any recognizable employees enter the Pines from across
the road. This testimony is incredible. I do not credit such
evidence.
The General Counsel also contends that Respondnt did not
adduce evidence to prove that it would suffer a detriment if
it permitted union organizers to visit prospective members on
Pines property. While the matter of detriment is dealt with
by both the courts and the Board in other cases it does not
merit special weight in view of the facts and circumstances of
the instant case. The chief points that require a dismissal of
the complaint are that 1) the Union did have easy access to
contact potential members on the unguarded premises of
Riverdale and 2) the Union exerted only minimal efforts to
organize Respondent's employees.
The General Counsel's motion to correct the record, dated
November 6, 1970, is granted and the record is corrected
accordingly.
As was pointed out by Trial Examiner Bott in the Falk case
one of the impediments to successful organizations derived
from the fact that the Union did not have the employees'
names and addresses. If the Union made greater efforts to
organize the employees it might have been possible for the
Union to successfully petition the NLRB for an election. As
part of its preparation for the election the Union would have
been able to avail itself of the rule enunicated in the Excelsior
case approved by the Supreme Courtin N.L.R.B. v. Wyman-
Gordon Co., 394 U.S. 759, as the result of which a labor union
is entitled to secure the names and addresses of all the em-
ployees in the alleged appropriate bargaining unit. In this
connection Trial Examiner George Bott stated:
Although clearly a union has to be able to communicate
with employees in order to secure a showing of interest
among them, the fact that it need secure only a 30 per-
cent showing before it will be provided with an accurate
list of all employees before the election for campaign
purposes is something the Board may wish to consider
when it assigns weights to each of the available means
of communication as it balances the statutory right of
employees to organize and the right of an employer the
use of his property.'
Upon the facts as disclosed in the record I conclude that
the Respondent did not violate Section 8(a)(1) of the Act
when it refused to grant access rights to nonemployee union
organizers to distribute union literature or otherwise dissemi-
nate union information among its employees on the Pines
Hotel property as alleged in the complaint.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning
of the Act.
2. The Union is a labor organization within the meaning
of the Act.
3. Respondent did not violate Section 8(a)(1) of the Act as
alleged.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, the purusant to Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER
The complaint is dismissed in its entirety.
2 N.L.R.B. v. Babcock and Wilcox, supra, 112