Raleigh Hotel

National Labor Relations Board - Board Decisions

Jun 29, 1971

191 N.L.R.B. 719 (N.L.R.B. 1971)

RALEIGH HOTEL
H & G Operating Corp . d/b/a Raleigh Hotel' and
Local 343 , Hotel & Restaurant Employees & Bar-
tenders International Union , AFL-CIO. Case 3-
CA-3978
June 29, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On February 26, 1971, Trial Examiner Stanley N.
Ohlbaum issued his Decision in the above-entitled pro-
ceeding, finding that Respondent had engaged in and
was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. Respondent filed
timely exceptions to the Trial Examiner's Decision and
a brief in support thereof.
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 brief, and the
entire record in the case, and hereby adopts the
findings, conclusions,' and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that Respondent,
H & G Operating Corp. d/b/a Raleigh Hotel, South
Fallsburg, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial
Examiner's recommended Order.
The name of the Employer appears as amended at the hearing.
We have carefully examined the record herein and find Respondent's
allegation of prejudice on the part of the Trial Examiner to be unwarranted
3 These findings and conclusions are based , in part, upon credibility
determinations of the Trial Examiner, to which Respondent has excepted.
It is the Board 's established policy, however , not to overrule a Trial Ex-
aminer's resolutions with respect to credibility unless , as is not the case here,
the s ponderance of all the relevant evidence convinces us that the resolu-
tioni"are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544, enfd
188 F 2d 362 (C.A. 3)
719
TRIAL EXAMINER'S DECISION
PRELIMINARY STATEMENT, ISSUES
STANLEY N. OHLBAUM, Trial Examiner: This proceeding,
under the National Labor Relations Act, as amended, 29
U.S.C. Sec. 151, et seq. (Act), was tried before me in Mon-
ticello, New York, on October 27-30, 1970, with all parties
represented by counsel and participating throughout. The
basic issue presented by the pleadings' is whether H & G
Operating Corp. d/b/a Raleigh Hotel, Respondent,' has vi-
olated Section 8(a)(1) of the Act by refusing Local 343, Hotel
& Restaurant Employees & Bartenders International Union,
AFL-CIO, Union or Charging Party, access to employees
living at Respondent's resort hotel premises at South Falls-
burg, New York, in connection with union organizational
activities.
Full opportunity was afforded to all parties at the trial to
present evidence, both testimonial and documentary, to sub-
pena and examine and cross-examine witnesses, to present
and answer contentions, and to propose findings and conclu-
sions. Subsequent to the trial, in accordance with leave
granted for that purpose and thereafter extended at the re-
quest of Respondent's counsel, briefs were received on behalf
of all of the parties; these, together with the evidence and
contentions raised at the trial, have been carefully considered.
Upon the entire record' and the testimonial demeanor of
the witnesses as observed by me, I make the following:
FINDINGS AND CONCLUSIONS
1. PARTIES, JURISDICTION
Respondent Employer , a New York corporation with prin-
cipal office and place of business in South Fallsburg, New
York, where it operates a resort hotel providing rooms, food,
beverages , and entertainment and related services , during the
year preceding issuance of the complaint received gross reve-
nues exceeding $500,000 and also purchased and received in
interstate commerce at its said hotel from places outside of
the State of New York goods and materials valued in excess
of $50 ,000, in the course and conduct of its said hotel business
operations . The Charging Party Union has at all material
times been and is a labor organization within the meaning of
Section 2(5) of the Act.
I find that at all material times Respondent has been and
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that assertion of jurisdic-
tion in this proceeding is proper.
II THE ALLEGED UNFAIR LABOR PRACTICES
A. Nature of the Premises Here Involved
Respondent's resort hotel, accommodating approximately
700 guests, is located near South Fallsburg, about 4 miles
from Monticello , in the Catskill Mountains resort area of
New York. While Respondent 's business is largely concen-
trated in the summer season, the hotel is nevertheless open
with reduced staff the year around , with off-season patronage
concentrated over weekends.
Visualization of the nature of Respondent's hotel premises
-surrounding grounds as well as buildings , comprising an
area estimated by its principal at 200 acres-is essential to an
understanding of central issues in this case. For this purpose,
' Complaint issued by the Regional Director for Region 3 (Buffalo, New
York) on March 12, 1970, based on a charge filed on December 19, 1969,
answer dated March 17, 1970.
3 Name appears as amended at hearing.
3 Trial transcript as corrected by my February 4, 1971, order on notice.
191 NLRB No. 110
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there is here set forth (Fig. 1)" a diagrammatic sketch of the
premises which has been stipulated into evidence (T.X. Exh.
3). It will be noted therefrom, as well as from photographs
in evidence (G.C. Exhs. 14-20 and 25A-25G) and relevant
supplementing testimony,' that:
1. The Raleigh Hotel premises shown on the sketch consist
of grounds and structures. On the grounds are structures
which may, in broad terms, be characterized as (a) buildings
for hotel patrons and (b) buildings for hotel employees.'
a. The main hotel buildings consist of interconnected 6-
and 3-floor edifices at the front or southerly portion of the
hotel grounds, with a night club at the west end. The kitchen
area is in the rear of the main hotel buildings, with 10 or 12
exits from that rear portion to the grounds to the rear con-
taining the staff structures assigned to employees. In addition
to rooms for patrons and entertainment facilities, the main
hotel contains various shops, leased by the hotel to shopkeep-
ers or concessionaires (cigar, beauty, men's, ladies', and coffee
shops).
b. The structures assigned for use of the hotel's employees
consist of various cottages to the rear of the main hotel build-
ings. These structures are heated and have varying numbers
of rooms, containing multiple beds or bunks.
TCoonfy Road 'h
-0 FAR MS -^
dr. 8 R O O K S
0 0 0
- A t h I e t i C F i e I d
0
4
4-- To R-1.042
I
Thompsonville Road
Parking Lot
E
and S T R E A M S
D A R E A
(Route #161)
1
Raleigh RN.I p,aperly L,ne
'.Feel anchor wire Pane topped by la feet barbed wire .-it.. . portion along
Th empsenvillo Read in front of main hotel buildings has hedgos inside w,re fence G.
V! T
a
0
O
To Thompsanoille
^i To go. # 17
NOTE. Net To Seal,
' The lower line on the explanatory legend at the bottom left side of the
sketch, identifying the 6-foot anchor wire fence topped with barbed wire
which runs around the front and part of the sides of the hotel grounds,
should obviously be. instead of- since it is shown as.. as well as in red 1168-69 (3d ed. 1940)
on the original sketch itself stipulated in evidence (T.X Exh 3) ` It is recognized that there are a very few exceptions; the "White House"
' A personal view of the premises was also taken by the Trial Examiner -alone of all structures not part of the "Main Hotel Buildings" as shown
at the suggestion and in the company of all counsel and all parties Cf. on the sketch-accommodates a few patrons as well as hotel staff (executive,
Snyderv. Massachusetts, 291 U S. 97,4 Wigmore, Evidence, Secs. 1162-64, managerial, or administrative)
RALEIGH HOTEL
2. The hotel grounds also contain a 300-500 car parking
lot which, while primarily for guests, is also utilized by
employees,' even though possibly in contravention of hotel
policy. There is also a parking lot across Thompsonville Road
(i.e., southerly side), available for utilization by hotel em-
ployees as well as others.
3. The hotel buildings and grounds front on Thompsonville
Road (a New York State highway, Route 161) in Sullivan
County, New York, which links Route 42 to Route 17 (the
"Quickway," the principal route between Sullivan County
and New York City). Thompsonville Road is heavily trav-
eled, servicing 10-15 hotels. Proceeding westerly on Thomp-
sonville Road from the Raleigh Hotel, Route 42 is approxi-
mately 1 mile away. Proceeding easterly for perhaps 2 miles
on Thompsonville Road from the hotel toward Route 17, one
reaches Thompsonville, consisting of a small post office, a
small store and milk bar, and about a dozen houses nearby.
The area on Thompsonville Road, and the area of and around
the Raleigh Hotel for several miles in each direction, is a
"highly rural country area, mountainous, essentially moun-
tainous ... [with] a lot of trees and so on."
4. Along the entire frontage of the hotel grounds, except at
the main gate (guard house; to be described) is a 6-foot an-
chor or cyclone wire fence, topped by a 3-strand, 1Y,-foot
barbed wire section. While clearly visible from the outside of
the hotel grounds (i.e., Thompsonville Road, looking north),
this fence is to a degree masked from the inside of the hotel
looking out (i.e., looking south) by hedges on the inside (i.e.,
hotel grounds side) of the fence along Thompsonville Road.
The same fence also extends along the sides (i.e., westerly and
easterly) of the hotel grounds, to wooded areas having dense,
for practical purposes impenetrable, underbrush, as does the
rear or northerly boundary of the hotel grounds (beyond
which are said also to be brooks and streams).
The frontage of the hotel grounds is approximately 1,500
feet, and the sides approximately 10,000 feet, forming a rec-
tangular shape of approximately 15,000,000 square feet.'
5. At a distance of approximately 2,000 feet northerly from
the front (i.e., Thompsonville Road) of the hotel grounds,
well to the rear of the described structures, is the hotel's
athletic field.
6. The hotel grounds are entered through a main gate,
which is both vehicular and pedestrian, located on Thomp-
sonville Road southeasterly of the hotel structures, relatively
close to the southeastern boundary of the hotel grounds. At
this main gate, near a "stop" sign, is a guard house, consisting
of a small structure within or at which are stationed one or
more uniformed sentries or guards, at least some of whom
carry unconcealed guns and who control access to the prem-
ises in accordance with instructions and limitations imposed
by the ownership and management of the hotel. The sentries
or guards, who work in shifts, include off-duty town police
and prison guards. As testified by Respondent's witness and
supervisor, Raleigh Hotel Superintendent of Services Grand-
wilhams, these guards at the gate do not allow persons into
the grounds unless they are recognized as employees of the
' Testimony of Respondent's supervisor, Chief of Maintenance Myron
Blackman.
' In this respect, the sketch stipulated into evidence does not accord with
the testimony of Respondent's principal and Hotel Manager Manny Halbert
describing the property as consisting of about 200 acres, since an acre
contains only 43,560 square feet (200 acres would be 8,712,000 square feet).
The discrepancy is, however, not material here
721
hotel or unless they have "business in the hotel." Indeed, as
Grandwilliams swore, the guards do not even permit an uni-
dentified passenger or guest of an employee driving in to enter
the hotel grounds without ascertaining "what the nature of
[their] business was ... whom they wanted to see ... and for
what purpose and then only "if they [i.e., the guards] were
satisfied with the answers ... would [they] let them go
through."
The main gate guard house is attended and the hotel
grounds are patroled by these guards around the clock.
In addition to the main gate guard house, there are two
other guard houses, one a manned guard house9 behind (i.e.,
north of) the main hotel buildings near the staff cottage
known as Holiday House, and the other guard house (some-
times manned)," a vehicular gateway on Thompsonville
Road toward the westerly side of the grounds, at or near the
night club. There are 2 additional, locked gateways to the
grounds, one a pedestrian gate and the other a vehicular gate,
along the hotel's Thompsonville Road fence.
It is undisputed that the sentry-guarded main gate has at
all times here material been the principal mode of entrance
to and exit from the hotel grounds. The extent to which the
gates or gateways other than the main gate have been open
or in use at times here material is to a degree disputed.
Resolving this dispute, to the degree that it exists, upon the
record as a whole, including testimonial demeanor as closely
observed, I find that the substantial credible evidence estab-
lishes that none of the gates or gateways other than the sen-
try-guarded main gate has been open or in use other than
occasionally, exceptionally, or sporadically, and then only
temporarily, such as for merchandise deliveries (easterly
"vehicular gate") or for night club functions or on Sundays
(westerly "vehicular gate" having guard house and sentries);
and that, for practical purposes, substantially all or most
vehicular and pedestrian traffic entering or leaving the hotel
grounds has been through the main gate, controled by the
hotel sentries as aforesaid."
7. Outside and westerly of the described main gate guard
house, on the road'shoulder of Thompsonville Road, there is
a sign stating:
NO PEDDLING
EXCEPT BY LICENSE
By Order of the Town Board
Town of Fallsburgh
There are also two or three signs at or near there, stating:
"No parking,
Cars will be towed away."
8. In addition to the structures on the hotel grounds, dur-
ing summer seasons only Respondent maintains several un-
heated farmhouse-type structures, which it calls "Park
House," for some of its employees, at a distance of approxi-
mately 2-3 miles via secondary public roads from the hotel
grounds shown on the sketch.
' Testimony of Respondent' s witness , Town of Fallsburg Police Sergeant
Mandy Greenspan
° Testimony of Respondent's witness and supervisor, Babbitt.
Among other things, it seems apparent that the main gate guard house
could hardly serve its intended purpose if entry to the hotel grounds was
otherwise controled through other open and unattended gates or access
points.
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, Respondent's grounds shown on the sketch are in
outward appearance not unlike an enclosed military com-
pound, camp, or fort to which, for practical purposes, admit-
tance may be gained only through an entrance manned by
armed security guards, who on Respondent's orders restrict
admission to those whom Respondent is willing to admit. I
find that at all times here material, entrance to and upon
Respondent's described hotel premises was and is subject to
Respondent's exclusive control, and that said premises were,
through natural terrain and cover, wire and barbed-wire fenc-
ing, and close control by armed and other security guards and
patrols, for practical purposes barred and inaccessible to per-
sons other than those Respondent permitted to enter after
inspection, identification, and questioning at the main gate
guard house.
B. Respondent's Work Force,- the Question of Where
Respondent's Employees "Live"
As has been indicated and as is shown on the sketch stipu-
lated in evidence (T.X. Exh. 3, Fig. 1, supra), there are a
number of staff houses or cottages on the Raleigh Hotel
grounds for the use of the hotel's employees. Respondent's
principal, Manny Halbert (Halpert), who also identifies him-
self as the hotel manager, called by General Counsel as a
witness, described five buildings, located to the rear of the
main hotel buildings, as "housing" the hotel staff in rooms
containing from one to as many as five per room. Respond-
ent's witness, Sidney Zalkind, who identifies himself as the
general manager , as well as the head of the night club, of the
hotel, corroborating that these staff buildings housed hotel
employees in winter as well as summer, testified that at max-
imum, that is during the July-August "season," the size of
the nonmanagerial staff reaches around 280, on off-season
weekends 250, and during off-season weekdays about 70; and
that he considers 150 to be the hotel's year-round core or
"steady crew," of which "steady crew" of 150, excluding
management he estimated "about 50 persons" live "off the
premises ... [I] would .... venture to say." On direct exami-
nation by Respondent's own counsel, Zalkin testified:
Q. (By Mr. Heilman [Respondent's counsel]) Of your
own knowledge, Mr. Zalkind, does the hotel, the Raleigh
Hotel, provide room and/or board for employees of the
hotel?
A. Yes, we do.
Q. Do you provide room and board for all employees?
A. Yes, we do.
Q. Do all employees of the hotel take room and board?
THE WITNESS: No, they don't.
Q. (By Mr. Hellman) Do you provide a room for all
employees?
A. We provide a bed for them.
Q. Do you know of your own knowledge whether the
employee actually uses that bed you provide for him?
A. No, I don't.
According to Zalkind, the procedure for assigning rooms (or,
perhaps more accurately, beds or bunks within rooms) to
employees is for Zalkind, in conjunction with the
"housekeeper," to "allot a certain number of rooms, what-
ever they need, to each department, for its employees" on the
"basis of one bed for each employee"; he does not "take bed
checks to find out whether anyone slept in "a bed or not." On
cross-examination, Zalkind conceded that the employees'
staff buildings behind the main hotel "sometimes ... are oc-
cupied to capacity by the staff," not only during the summer
but also on off-season weekends, this having been true in 1969
as well as 1970; and, according to Zalkind, some of these
rooms have housed as many as six employees at a time.
Zalkind listed 13 departments or components of the hotel;
viz, office, housekeeping, dining room, night club (of which
Zalkind is in "direct supervision" and of which in the summer
of 1969, according to him, six lived in "staff buildings" be-
hind the main buildings, and in the off-season seven lived
there, this being "their home, so to speak," while working at
the hotel)," bar, security, maintenance , day camp, athletic,
traffic control, service, kitchen, and music.
It is stipulated, as supplemented by testimony of Respond-
ent's principal Manny Halbert (and its general manager, Sid-
ney Zalkind) regarding Respondent's work force and its work
shifts or work hours, as shown on Figure 2, infra.
It is further stipulated that, excluding managerial, super-
visory, office clerical, and guard personnel, during the
period from July 1 to December 31, 1969, as shown by Re-
spondent's records, the total number (regardless of how long
employed) of persons employed at the Raleigh Hotel was
1,015; that the addresses "furnished by the employees, them-
selves, to the hotel, itself, and appearing on the payroll record
of the hotel, itself"-it would seem clearly the "permanent"
address or "domicile" of the employees, as distinguished
from their habitation while working at the hotel" -listed 509
in New York City or Long Island, 250 in Sullivan County or
in Ulster County within 15 miles of South Fallsburg (near
which the Raleigh Hotel is located), 62 elsewhere in New
York State, 179 in States other than New York, 9 in countries
other than the United States, and 6 (permanently) at the
Raleigh Hotel itself; and that, for these 1,015 employees, "the
Employer's records show that deductions were made for
room and board from all the 1,015 employees except for 88.
. room and board at the Raleigh Hotel .... Meals and
lodging is the way the record reads ...."14
" On cross-examination, however, Zalkind conceded, with apparent
reluctance and an observed degree of seeming truculence of manner, that
there were variations in his alleged "living on" and "living off" premises
figures, dependent on changes in personnel, which in certain categories have
a "tremendous turnover." This indicates that the alleged figures or totals
provided by him are far from certain or even clear As will be shown,
Zalkind, as well as all other witnesses of Respondent, flatly refused to
identify any of the alleged employees concerning whom he had testified on
direct examination, notwithstanding the Trial Examiner's direction-which
he refused to heed-that he submit to cross-examination thereon
" As stated at the trial by Mr Rosenthal, Respondent's counsel, "I want
it clearly understood that the stipulation does not mean or it is not intended
to mean that these employees actually reside at those addresses while they
are working or while they are employed by the hotel " Raleigh Hotel Maitre
d' Babbitt conceded that employees coming from New York City or else-
where (Pennsylvania) to work at the hotel on off-season weekends "live on
the company's premises. in staff buildings on the hotel grounds " And
Respondent's traffic manager, Finegold, conceded that, in giving the hotel's
bookkeeping department the "addresses" of his subordinates, he only pro-
vides their "legal address" or "home address," emphasizing that this is
"their legal address . in case they leave and I have to send them their
check, I want their home legal address," conceding that "even in those cases
where somebody lives on the hotel premises he still has an address off the
premises " Respondent's superintendent of services, Grandwilliams, tes-
tified to the same effect.
'" After having so stipulated, Respondent's counsel added the following
"caveats". "The records-do not indicate that a deduction was made. The
(Cons:)
RALEIGH HOTEL
Fig. 2: Distribution of Raleigh Hotel Workforce and Workshifts
TOTAL EMPLOYEES a/
Department
Housekeeping
Kitchen
Music
Service
(i.e., bellhops)
Maintenance
Dining Room
Swimming Pool
night Club
Office
Day Camp
Athletic (tennis courts,
handball courts, base-
ball field, valley ball
court, & pingpong)
Patrol
(Total
1st 2 Last 2
weeks weeks
July Oct.
1969 1969
49 30
61 80
7 13
41 35
14 12
72 58
16 3
40 33
25 16
24 12
14 14
18 11
381 317)
Shift &/or Work Hours
5-1/2 hrs per day (e.g.,
Sam--4pm; 9am--2:30pm and
7--8pm)
8 or 9 hrs per day (e.g.,
6--llam and 12--2pm and
5--8pm; 7--llam and 12:30-
2 or 2:30pm and 5:30 or
6--8pm)
9pm--3am
"Split shifts . up
to the superintendent of
service"
8 hrs per day, dayshift
or nightshift (Sam--4:30pm
or 5pm--1 or tam)
7 hrs per day distributed
throughout the day to cover
breakfast, lunch, and dinner
(spread over period 8:30pm--
9pm)
Approx 6 hrs per day,
approx 10am--5pm
Approx 5 or more hrs per
night (9pm--around lam, or
approx lOpm--3am)
7-1/2 hrs per day
Approx 6--7 hrs per day
(until 4 or 4:30pm)
6--7 hrs per day
8 hrs per day, shifts
around the clock
723
at Not necessarily employed for entire period; includes management and
supervisory.
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's principal , Manny Halbert, testified that the
staff structures behind the main hotel buildings are all heated,
so that hotel employees can be housed there winter as well as
summer. Respondent General Manager Zalkind testified or
conceded on cross-examination that each employee of the
Raleigh Hotel has a "payroll sheet " which among other
things sets forth his wages and also "an amount of money in
cash equivalent representing what the hotel believes the meals-
and room , lodging, that are furnished to that employee,, are
worth .... The latter is known as, `meals and lodging,' and
that is the heading under which it appears on the.... payroll
sheet.... [T]hat represents the amount that the hotel feels
the meals and lodging, provided for the employee , are worth
for his habitation , so to speak , and eating while he is at the
hotel.... charged or.... entered for him on those sheets,
regardless of whether he actually spends every night there, or
eats every meal there .... Except for those people who have
instructed [the hotel] , expressly , that they do not want this.
. [b]ecause, for example, they might have their own rooms
right near the hotel , like the patrols and the housekeeper and
perhaps some others ...."15 As to the "Park House," which
as indicated above is unheated and the only residential facility
provided by the Raleigh Hotel for its employees off the hotel
compound itself, Zalkind testified that it is utilized only dur-
ing the summer season ; that "It changes very rapidly, boys
come and go and it's very difficult to discern how many are
living there at one time"; and that during the summer of 1969
only "about 20" and in 1970 only "about 12" employees
"actually lived there."
In connection with its defense, Respondent produced a
number of members of its managerial or supervisory staff,
most of whom definitely conceded that some of the employees
in their respective departments lived in staff buildings on the
Raleigh Hotel grounds. They attempted , however, to estab-
lish or give the impression , through conclusory alleged "total
figures," that many of their subordinates "lived" outside of
or off the hotel grounds. Their testimony16 in this respect
followed essentially the same pattern: After testifying on di-
rect examination as Respondent 's witnesses , in some cases
concededly in alleged "estimates" and in others in terms that
were vague , equivocal , inconsistent , and even contradictory,
concerning "total figures" of alleged employees who lived "on
records merely indicate that there is a portion of the wages allocated for
meals and lodging , that does not necessarily mean that in each case the sum
is deducted from the pay ", " . the fact that the payroll record indicates a
portion of the wages allocated to meals and lodging did not mean that the
employee actually lived on the hotel premises , actually ate the meals, it
means that the meals and lodging were available and offered to him but
whether they actually ate the meals or whether they actually slept in the bed
is another matter", " as I understand it and we will have testimony on
this , there are certain employees that, for social security purposes, we have
listed an allocation of the wages for meals and lodging, but from whose
wages we do not make the deduction and that would appear on the payroll
record along with other employees to whom the deduction was actually
made."
It will have been noted that the foregoing contains numerous ambiguities
if not equivocations . When, thereupon , counsel for General Counsel, Mr
Neubauer, promptly remarked , "It is going to necessitate bringing in the
payroll records ," Respondent 's counsel Mr Rosenthal then stated: "All I
am stipulating to, if the records were here before you , they would show that
with respect to all but about 88 employees [and] a notation was made on
the record for a meal and lodging deduction on the wages On the other
88 it says , no R[oom] and B[oard] "
" Chief of Maintenance Myron Blackman similarly testified that em-
ployees who do not live on the hotel premises are not charged for meals and
lodging
16 I e , Zalkmd (general manager and night club supervisor), Babbitt
(Maitre d'Hotel), Finegold (traffic manager), Blackman (head of mainte-
nance), Hannom (director of activities), Karp (kitchen steward), Grandwil-
hams (superintendent of services), and Smilowitz (assistant housekeeper).
premises" and "off premises ," they flatly refused-notwith-
standing express directions of the Trial Examiner-to submit
to cross-examination on this subject . Thus, when counsel for
General Counsel sought to question each of these witnesses
concerning the identity of the employees referred to by the
witness in the conclusory "total figures" testified to by him
on his direct examination , Respondent 's counsel objected.
Deeming this inquiry by counsel for General Counsel to be
wholly proper in order to ascertain the meaning , truth, and
significance of the witness ' direct testimony , as well as to test
and witness ' credibility , and since no testimonial privilege
was involved or even asserted , I overruled these objections.
Counsel for Respondent thereupon "directed" or advised
each witness not to answer the questions . When the Trial
Examiner directed the witness to answer , counsel for Re-
spondent instructed him not to answer , and the witness there-
upon refused to answer . The following excerpt from the
record (p. 611, cross-examination of Grandwilliams, one of
Respondent 's last witnesses) is illustrative:
MR HELLMAN [Counsel for Respondent; to the Trial
Examiner]:... You know our position on this. That the
Respondent has instructed all witnesses by counsel of
the Respondent , not to divulge any names of employees
in line with prior Board precedent."
TRIAL EXAMINER: The record should reflect that
Counsel for the Respondent is indeed taking what ap-
pears to be a consistent position and that is of overruling
the Trial Examiner 's direction of a witness to answer
questions.
Under the circumstances , since in my view the inquiry by
counsel for General Counsel was proper cross -examination
and since no testimonial privilege was involved or even as-
serted , I granted the motion of counsel for General Counsel,
applicable to each of these witnesses , to strike out related
testimony given by the witness on his direct examination, for
refusing to submit to cross-examination . I adhere to the view
that these rulings were proper , both as a matter of the applica-
ble rules of evidence governing these proceedings (Act, Sec.
10(b); Peo. v. Cole, 43 N.Y . 508; 9 Wigmore, Evidence, Sec.
1391 (3d ed. 1940); "Cross -examination of adverse witnesses
is a matter of right in every trial of a disputed issue of fact,"
Matter of Friedel v. Board of Regents, 296 N.Y. 347, 352, 73
N.E. (2d) 545), and also specifically under Board Rules and
Regulations (N.L.R.B. Rules and Regulations , Series 8, as
amended, Secs. 102.34 (f) and 102.44 (c)).18
1' No such precedent was cited The record elsewhere indicates that
Respondent's counsel was apparently referring to the Board 's established
rule, which has met with repeated judicial approbation, that the identity of
employees who have engaged in protected , concerted activity need not,
under certain circumstances , be disclosed by discovery in advance of trial,
so as to avert reprisals Cf, e g, Walsh -Lumpkin Wholesale Drug Company,
129 NLRB 294, 295, enfd 291 F 2d 751 (C.A 8) Since that situation is
altogether inapposite here this contention by Respondent , as I pointed out
at the hearing, is without merit. I adhere to that view I also adhere to the
view that my ruling vacating Respondent 's subpoena duces tecum whereby
Respondent sought to compel the production of all union membership or
membership application cards signed by any of its employees was proper,
since among other things there is no allegation of violation of Sec 8(a)(5)
of the Act or involving use of those cards or any other issue under the
pleadings to which such cards would be material.
11 In this connection , Respondent's counsel was entirely in error at the
trial in insisting that the Trial Examiner (and Board) lack the power to
vacate a subpena and that only a court has that power It is clear that
although issuance of the subpena is mandatory, it may nevertheless be
vacated by the Trial Examiner Herman Brothers Pet Supply, Inc. v.
N.LR.B., 360 F 2d 176, 178-79 (C A 6), N.L.R.B. v. ITU, 76 F Supp. 896
(S D N Y.) Cf NL.R.B v Duval Jewelry Co., 357 U.S 1 The propriety
of the exercise of the power to vacate may be tested in enforcement proceed-
ings . Cf F C C v . Schreiber, 381 U S 279.
RALEIGH HOTEL
Respondent 's stipulation as to the entries on its payroll
records concerning "room and board" or "meals and lodg-
ing" for its employees, together with the described testimony
of its own witnesses to the extent credited, concerning em-
ployees actually living upon its premises , amply establishes
prime facie the residence of those employees upon Respond-
ent's hotel premises.
Respondent has conceded upon the record, by its stipula-
tion, that an overwhelming percentage (all but 88 out of 1,015
total employees in the latter half of 1969) were officially
reported by it to the United States Government as being
compensated in part by "room and board" or "meals and
lodging" on its hotel premises . Regardless of whether, as
claimed by Respondent 's counsel , this is "for social security
purposes" (whatever that may mean in this context)," Re-
spondent 's payroll records certainly establish at least prime
facie the facts therein reflected and officially reported to the
Government. General Counsel at one point apparently
sought to establish that the sums of money thus officially
reported by Respondent for its employees ' "meals and lodg-
ing" were purposed by Respondent to fulfill its statutory
obligations with regard to the payment of minimum wages-
i.e., that the amounts thus officially reported by Respondent
for "meals and lodging" constituted a part of its employees'
statutory minimum wage. On Respondent 's objection, I did
not permit General Counsel to establish this contention con-
cerning the makeup of Respondent 's employees ' minimum
wage, since it is not in issue here. However, whether "for
social security purposes" or otherwise, the amounts involved
undeniably represent a valuable and substantial consideration
to the employees and are clearly an important part of their
wages. It is not to be assumed that Respondent is guilty of
falsely reporting facts-namely , that the amounts reported as
representing the value of "meals and lodging" furnished were
false since the "meals and lodging" were not in in fact fur-
nished-a serious offense.20 Instead , Respondent will be ac-
corded the benefit of a presumption of innocence of such
offense. Cf. Peo. v. Leavitt, 301 N.Y..113, 117, 92 N.E. (2d)
915; 9 Wigmore, Evidence Sec. 2511 (3d ed. 1940). Where
such facts regarding the furnishing of habitation to employees
are supplied by Respondent itself in official reports , it is to be
presumed that they are true and that the employees actually
maintain their habitations as thus reported by Respondent.
Under the circumstances shown, at the very least it was in-
cumbent upon Respondent to establish the contrary-viz,
that its own official payroll records were false or inaccurate.
This could only be accomplished by specific factual showing;
not, as attempted by Respondent , through conclusory state-
ments of interested witnesses as to which its counsel , resisting
the Trial Examiner 's express orders, refused to permit cross-
examination by "directing" the witnesses to refuse to answer,
without claiming constitutional or other valid testimonial
privilege. In short, Respondent has failed to rebut General
Counsel's prime facie showing, through the described stipula-
" According to testimony of Respondent 's general manager and night
club supervisor, Zalkind, "There is a certain amount added onto the person's
earning check in order to heighten their social security benefits ," which he
calls an "adjustment" for "meals and board ." Zalkind says this extra amount
is added to the employee 's wage as officially reported to the United States
Government (Social Security Administration and/or Internal Revenue Ser-
vice), although "not actually paid in dollars and cents to the employee"
since "it is considered to be an equivalent of money in value ... for taxable
purposes." However-also according to Zalkind-this is not done for all
employees , for example "some maids and some traffic control people ," since
the latter "live off the premises " and "most of them. . have two jobs "
'0 The Social Security Act, 42 U.S C A Sec. 408 , for example , provides
substantial penalties for false reporting , as does the Internal Revenue Act,
26 U S.C.A. Secs. 6051, 7204, 7206-7.
725
tions and testimony to the extent credited, as to the residence
within the Raleigh Hotel compound of a substantial number
of its employees at the times here material.
It is accordingly found that, as alleged in the complaint, at
the times here material a substantial number of Respondent's
employees resided , and performed their services for Respond-
ent during long and/or irregular hours of employment,
within the grounds of the described Raleigh Hotel com-
pound; that said compound and the grounds and structures
therein, as well as the entrances thereto, were firmly secured
and closely guarded so as to be inaccessible to persons outside
of said compound , except by Respondent's permission; and
that said employees were subject to Respondent 's control
while within said compound.
C. Organizational Activities and Efforts
Credited testimony21 establishes that toward the end of
July 1969 some Raleigh Hotel employees visited the Mon-
ticello office of the Union-a distance of about 4 miles from
that hotel-seeking "to have an organizer come into the Ra-
leigh and organize the place because they said they needed it
badly." The Union's business manager supplied them with
union membership application cards, instructing them to "try
to sign as many people that they can" and placing Union
Organizer Alfred Vezina in charge . A few days later the
employees returned with 36 signed union cards which they
had themselves solicited "on the premises," stating that they
"couldn 't do any more" and that Vezina "would have to
come on the premises , [your]self.... to come and speak to
somebody they can rely on. They want to speak to an organ-
izer , the benefits they can get from the unions and besides,
they had pressure put on , from the management , to them. I
[Vezina] told them I would try to get on the premises, but it
would be very difficult for me." Accordingly, ' on the same
day, around the beginning of August, Vezina made a trip to
the Raleigh and, emplacing himself outside of the main gate
of the compound , commenced attempting to make distribu-
tion of union literature and membership application cards.
The nature of the Raleigh Hotel compound and its inac-
cessibility to those who wish to enter without identification
meeting Respondent's standards, has already been described
in detail and found. It remains to show what those admission
standards were and are. Through its counsel , Respondent
concedes here (trial tr., p. 16) that since mid-August 1969,
both orally and in writing, "the union requested permission
to come on the premises , to organize the Respondent's em-
ployees" and that "we refused such access and we still refuse
such access." Indeed , Respondent takes the flat position that
it would refuse to permit a union representative to enter its
compound and has the unqualified right so to refuse even in
the absence of a fenced-in and closely guarded compound.
From the trial transcript (p. 79):
MR ROSENTHAL [Respondent 's counsel] : We denied
the union access to the premises of the hotel at all times,
in all places, and in all instances ; whenever the ;request
was made, it was denied . We have admitted that. The
question in this proceeding is: do we have a right to deny
it?
Also from the trial transcript (p. 223):
TRIAL EXAMINER [to Mr. Rosenthal , Respondent's
counsel] :... Your position, I take it, correct me , if I am
wrong, as you have just indicated , you concede that you
have at all times refused the Union access and you now
" General Counsel 's witnesses , Vezina, Kazansky , and Roskoski.
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refuse the Union access and you would do the very same
thing if there were no gates or guards?
MR ROSENTHAL: That is correct.
TRIAL EXAMINER: You have the right to refuse them
access to your premises?
MR ROSENTHAL: As a matter of law, that is correct
... he [union representative] attempted to get on the
premises and we wouldn't let him on .... We admit
that.
Correspondence between the Union and Respondent, or their
counsel, ranging over the period from August 1969 to Febru-
ary 1970, further establishes that the Union's efforts to gain
admission to Respondent's compound in order to talk to
employees met with no success even though the requested
access was expressly limited to employees' own "staff houses,
staff dining room and areas at which the staff congregates but
away from the hotel's guests." (G.C. Exh. 8)
Following his initial visit at the beginning of August
through late September 1969 Vezina returned to the Raleigh
"every day" or "most every day," at various times of the day
-morning, afternoon, or evening-"for an hour or two,"
taking up his position "on the edge of the main highway"
near the hotel's guarded main gate, the only place where he
observed any movement in or out, but the "people used to
drive right in and right out." Vezina also deployed afoot
along Thompsonville Road to "see if there was any gate
where the staff would come in or go through." Although thus
there afoot as well as driving by daily (he himself lives on
Thompsonville Road), he at noati'me observed "any gate open,
other than that main gate where the guardhouse is and where
the guard stands." Vezina credibly described his handbilling
endeavors on the highway outside the fenced-in compound
near the main gate thus:
I would stand there .... If I was lucky and a car would
come up and the window is open, I will hand a pamphlet
to them, but very few pamphlets were given out in front
of the gate because I think the booths [ i.e., main gate
guard house] are 75 or 80 feet away [from the edge of
Thompsonville Road where I stood], so everyone would
drive into the cops there and drive right in .... They
would stop at the booth where the cop is standing
. when they slowed down, then I would try to give
them out a pamphlet .... Sometimes I would; most
times I couldn't .... [Cars going in] will stop at the
guardhouse. They will drive in to turn [i.e., to the hotel
buildings or parking lot] and stop by the guardhouse
. Some, he [i.e., the guard] would wave right on.
Some, he would check with them.
Vehicles leaving the compound "most of the times....
wouldn't stop" but just turn right or left onto the highway.
So far as pedestrians were concerned, they were "very rare.
... so rare I couldn't even tell"; and at no time did Vezina
ever observe a pedestrian enter the compound by any gate
"other than the main gate where the guard was." Nor did
Vezina at any time observe any "employee.... in uniform"
walking in or out of the premises, although he at times did
see "somebody in uniform driving." He was thus reduced to
handbilling to "whoever took it," without even knowing
whether or not they were employees. "I [Vezina] have no way
to know," since a person not in uniform was indistinguishable
from a guest. In this connection, it is noted that Respondent's
witness, Myron Blackman (its head of maintenance),
conceded that hotel employees may enter or leave the com-
pound out of uniform. And, as will be recalled, Respondent's
witness, Grandwilliams (its superintendent of services),
conceded that the main gate guards would not permit an
unidentified rider or guest of an employee driving in to enter
the compound without questioning them as to "what the
nature of [their] business was.... whom they wanted to see
... and for what purpose"; then and then only, "if they were
satisfied with the answers.... would [the guards] let them go
through." Vezina nevertheless persisted in his efforts at hand-
billing through September, when he was relieved in this task
primarily by Union Representative Richard Kazansky.
Subsequent to September 1969 (when Vezina was relieved
by Kazansky at handbilling), Vezina nevertheless continued
to drive by the Raleigh Hotel, since he lives on Thompson-
ville Road about 2Y, miles from the Raleigh. Then, too, at no
time did he observe any gate other than the guarded main
gate to be open. As he describes it, even after September 1969,
"It was the same. The gate was closed, there was only one
main gate open and there was the cop, the guard standing
outside there." He observed the uniformed guard to be wear-
ing a gun . At times there would be two uniformed guards at
the main gate.
On an early occasion when he was on the road outside of
the compound at the beginning of August 1969, Vezina "told
the guard to give me [Vezina] a break, let me close to the
booths [i.e., main gate guard house]; he said, look, I have a
job to do and he said, look, if you stand on the highway, but
you cannot come on the premises."
On another occasion, in late September 1969, Vezina and
Union Representative Richard Kazansky, who had joined
him, again sought to gain admission to the compound and
were stopped by the guard at the main gate guard house. This
time they told the guard they wished to see "Manny Halpert
[Halbert], the owner of the hotel." The guard instructed them
to park their car and permitted them to proceed. In the hotel,
Vezina advised Halbert that "I [Vezina] want to come in on
the premises because the kids [i.e., Raleigh Hotel employees]
came and asked us to speak to those kids and their staff house
and we told him we had no communication with them. They
are working too many hours. There is no transportation to
the town for'them and we said, the only way we can reach
them is to come to the staff house and speak to them, like they
are home. " (Emphasis supplied.) To this, Halbert replied, "I
have got to make a phone call" and told the union representa-
tives to return the next day., When they returned on the
following day, they were stopped at the gate by the same
guard as the day before, who, when they again told him they
wished to see Halbert, this time refused to permit them to
enter but instead telephoned Halbert ,from the guard house
telephone extension, on which Halbert informed Vezina that
he had been unable to reach his lawyer, since he was out of
town, but to call Halbert the following Monday. On the
following Monday, when the union representatives again re-
turned to the compound, the guard again would not allow
them to enter, but from the guard house telephoned Halbert,
who stated that "he [Halbert] got in touch with his lawyer
and definitely don't want us to come on the premises and if
you do come on the premises, you will be trespassing and be
arrested."
In addition to the attempts at handbilling, Vezina endeav-
ored to reach the Raleigh employees at their staff houses by
telephone, but "it was impossible to get them. They [i.e., the
hotel front desk or operator] would try to ask me which staff
house.... or they will refer me to call the staff dining room
and the staff dining room will tell me to call the staff house."
Vezina did not in fact know in which particular staff house
given employees lived. In this connection it will be recalled
that, as testified by Respondent's principal, Halbert, there is
no telephone instrument in any of the staff houses other than
a single extension instrument from the hotel switchboard at
the hotel front desk or main building.
RALEIGH HOTEL
Furthermore, Vezina attempted to set up a meeting with
some of the hotel employees, but this likewise proved unfeasi-
ble, he being told by them that "it is a long way from Mon-
ticello" where our office is; they didn't have no transporta-
tion.... they said, the only way you can do anything is to
come in and talk to them, yourself, because they want to
speak to an organizer and the benefits they can get from the
unions and the only way you can do that is to come to the staff
house and speak to them, like at their home. If you try to stop
them and talk to them at a street or a bar, they would be
afraid to be seen with me and it scared them away from me."
(Emphasis supplied.) Nevertheless, during August and Sep-
tember 1969 Vezina frequented neighboring bars where he
had been informed that some Raleigh employees had been
observed; however, he was again told by the few Raleigh
employees he was able to recognize there that the "only thing
... is to get yourself to the staff house.... they won't come
to the bar room because they would be afraid to be seen and
they won't talk to you like they talk to you in the staff
house."23 Vezina actually undertook to set up an off-premises
meeting of the employees through utilizing as a contact one
of the Raleigh employees who had acted as emissary for the
others or who had visited the union office as described above.
However, when Vezina succeeded in reaching this employee,
the latter "told me [Vezina] he got squeezed out and he don't
want to bother with it any more and again, he told me the
only thing you can do is try to get on the grounds and go to
the staff house; that is the only way you can do something."
Vezina was also unsuccessful in obtaining the full or accu-
rate names of Raleigh employees. In his words, "you would
get their first name, or nickname, but you could never get the
full name"-not surprising, considering the transient nature
of the employees and their employment, and the level of jobs
involved; nor, with rare exceptions, could he obtain any ad-
dress other than the hotel itself-to which, as indicated, he
was forbidden access at any and all times. Nonetheless, to
leave no stone unturned, Vezina visited a number of Raleigh
employees whom he had ascertained to have homes out of
town-one in Simpson, Pennsylvania, a distance of about 75
miles; and he met with no success when he "asked those
people that I know ... to try to get me a list of the names and
addresses" of the Raleigh employees.24
All of the foregoing notwithstanding, Vezina nevertheless
made arrangements for a meeting for the Raleigh employees
at a War Veterans Hall near the union office in Monticello
about 4 miles from the Raleigh. (The union office itself is
unsuitable for such a meeting, since it consists of 4 individual
" It is about 4 miles from the Raleigh to Monticello . This distance must
be appraised in terms of nonavailability of public transportation , expense of
taxicab transportation in both directions for employees of the economic
level here involved , the oddly unintegrated and split-shift long working
hours of the various categories of employees , the concededly large turnover
in employees , the impracticability of assembling meaningful numbers of
employees at some rented or borrowed facility for such purposes on a
repeated basis , the inconvenience to employees of traveling at least 8 miles
(to and fro) after or before or between working hours merely in order to
carry on a conversation there rather than in their own paid rooms on their
own free time , and other factors of general impracticability in the particular
situation presented
" See S. & H. Grossinger 's Inc., 156 NLRB 233, 250 , enfd 372 F 2d 26
(CA 2)
24 Although Respondent attempted to show that some of its employees
lived , and that perhaps others to an extent were habitues of or were seen,
at a bungalow colony near the Raleigh , the extent of such living or visitations
was not satisfactorily established (Here , again , Respondent 's counsel
refused to permit its witnesses to be cross-examined concerning who the
alleged persons were .) Nor in any event would such living or habituation by
some of its employees negate the rights of the other employees who lived
within the compound.
727
rooms, comprising a total area of about 20 by 20 feet with no
conference space or hall.) However, "Nobody showed up.
They told us they are working about 20 hours a day; they are
working cocktail parties; they don't have any transportation
and there was no way to bring them .... They told me that
they didn't have any transportation." Vezina estimates that
50% of the employees do not have cars, and it was not
established to the contrary. In this connection, Respondent's
witness Smilowitz, its assistant housekeeper, conceded on
cross-examination that Respondent runs its own transporta-
tion pickup service for his subordinates who do not have cars;
these employees, Smilowitz testified, "are picked up ... by
the hotel and brought back .... The hotel supplies the trans-
portation." While taxicab service is available in the area, cab
fare is estimated at $6 for the round trip to Monticello. Ap-
parently there is no bus from the Raleigh Hotel to Monticello.
According to Vezina, the chief expressed difficulties to a
meeting in Monticello were the employees' working hours
(split shifts, etc.) and the lack or expense of transportation.
Vezina even asked that employees come to his own apart-
ment, a distance of about 2% miles from the Raleigh, which
again is "very bad for transportation" and unsuitable for a
meeting with more than one or two people.
With regard to the possibility of calling organizational
meetings elsewhere, the proof shows that Thompsonville, per-
haps 2 miles from the Raleigh Hotel, consists of nothing more
than a small post office, small store and milk bar, and perhaps
a dozen residences; South Fallsburg, about 3% miles from the
hotel, is primarily a residential community; Woodridge,
about 5-6 (or, according to Respondent's witness, Zalkind,
about 8) miles away, is a small residential town; Wurtsboro,
about 10-12 miles away, is like Woodridge; and Liberty, with
a population of around 10,000 and only somewhat smaller
than Monticello, is 13-14 miles distant, or 26-28 miles for the
round trip, from the Raleigh. As indicated, half of the em-
ployees are estimated to have no personal transportation;
taxicabs are expensive; and bus transportation, to the possible
extent available in certain instances, is subject to schedules
doubtfully reconcilable, particularly in both directions, with
employees' working-time requirements.
Aggravating the foregoing problems was the factor,
conceded by Respondent's witnesses, of the high degree of
turnover--characterized by one of Respondent's supervisors
as "fantastic"-and the irregular work shifts and even work-
days25 among many of Respondent's employees.
From September 29, 1969, through April 24 or 25, 1970,
Vezina was for the most part supplanted in the described field
organizational activities and endeavors by Richard Ka-
zansky, whose credited testimony is corroborative of that of
Vezina and further demonstrates that Kazansky's own orga-
nizational efforts encountered the same obstacles as and met
with no greater success than those of Vezina before him.
When, in October, Kazansky again besought the main gate
guard to allow him into the compound, the guard showed
Kazansky "a sign in the booth with my [i.e., Kazansky's]
card posted to it and that had my name, my description of
my car, and my license plate number, and it said, `Do not
admit,' and he showed this to me and said he couldn't possi-
bly permit me on the premises." In corroboration of Kazan-
sky's testimony, the sign itself which the guard displayed to
" For example, Respondent's witness, Smilowitz, its assistant
housekeeper, testified that while some chambermaids work 7 days per week,
others "put in an average of four or five days," while off-season they work
weekends and possibly "Monday or Tuesday", and that when there is a drop
in the hotel patronage, some maids "are laid off for a day or two."
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kazansky was produced.26 It consists of a pink piece of card-
board to which is stapled the business card of Kazansky, with
what appears to be an automobile license number (2545 CK)
written on the back of the card. The pink cardboard to which
Kazansky's card is affixed states:
10/ [illegible] /69
DO NOT
ADMIT
Richard Kazansky
Union organizer
N.Y. reg. 2545 CK
by M.H. [i.e., presumably Manny Halbert, Raleigh
Hotel principal]27
It will have been noted that the foregoing written instruc-
tion by Respondent's principal, Halbert, was in October
1969. However, Respondent General Manager Zalkind tes-
tified that he issued a similar instruction orally to the hotel
security guards as early as 1968 and that there has at no time
been any change in that policy. From the trial transcript (p.
341):
Q. [By Mr. Hellman, Respondent's counsel] As gen-
eral manager of the hotel, Mr. Zalkind, did you give any
instructions to your security personnel with respect to
union organizers?
A. I told them not to let them on the grounds. They
could let them do anything they wanted outside the
grounds and to make a notation of any time they saw
them to let us know.
As had Vezina before him, Kazansky also attempted to
ascertain Raleigh employees' names and places where they
could be located and spoken to outside of the compound, and
to set up a meeting. Kazansky, too, visited restaurants and
bars in the area in order to locate and speak to Raleigh
employees. As with Vezina, these efforts met with no success;
"once or twice I [Kazansky] ran into somebody who worked
at the Raleigh Hotel, but would not talk to me under these
circumstances .... They told me they were afraid to speak to
me out in public, for fear that they might be seen with me."
The long and the short of it is that neither Vezina nor
Kazansky succeeded in obtaining so much as a single union
membership application in addition to the aforedescribed 36
cards solicited by other employees and "signed in the staff
house" within the hotel compound.
Qualified as an expert in union organizing, Vezina's cred-
ited testimony on the basis of his substantial organizing ex-
perience in the Catskill Mountain resort area here involved,
including some of the largest resort hotels there, establishes
that it is at least highly more feasible to talk to an employee
36 It was obtained by Kazansky on October 20 in the absence of the
guard. Vociferous objection was made by Respondent's counsel to the re-
ceipt in evidence of this exhibit. Since there was no proof or claim that any
Board agent had in any way been involved in its procurement, it was admit-
ted into evidence See, e.g., Air Line Pilots Association, 97 NLRB 929, and
authorities cited, General Engineering, Inc, 123 NLRB 586, 8 Wigmore,
Evidence Sec. 2184a (v) (3d ed. 1940).
z' There was less than creditable testimony by Respondent 's witnesses
that on those occasions when they passed through the gate to the compound
they did not observe the Union's representatives handbilling there. Even
were this true, it would not follow that those representatives were not there
at other times as their credited testimony fully persuades me they were
Respondent did not elect to produce its various shifts of guards stationed
around the clock at the gate, who of course were in a better position to
observe who was or was not thereabouts Furthermore, the Union was under
no obligation to establish on a full-time saturation basis what had turned out
to be a vain endeavor to reach employees through handbilling at the gate,
concerning joining a union at the place where he lives rather
than elsewhere; and particularly so when (as here in many
cases) the employee works a split shift or long hours and his
locatability other than in his room on the premises during
off-duty time is at best conjectural.
Upon the totality of the particular record here presented,
it is found that, substantially as alleged in the complaint,
organizational activities looking toward lawful collective bar-
gaining under and in accordance with public policies declared
by Congress in the Act have been attempted among Respond-
ent's employees since July 1969; that, in furtherance thereof
and at the request of said employees lawfully acting in con-
cert, the Union has made continuing reasonable efforts to
contact said employees through reasonably available and
practically efficacious channels of communication, other than
in said employees' habitations within Respondent's com-
pound, entrance to which has at all times been and continues
to be interdicted by Respondent as aforesaid; that the Union
has been unable to establish any meaningful or efficacious
contact or communication with said employees for the afore-
said purpose; that at all times here material Respondent has
denied, refused, and physically prevented and debarred any
and every representative of the Union from entering its
aforedescribed hotel compound for the purpose of speaking
with said employees, or, any of them, at their or his private
rooms on off-duty time, notwithstanding repeated reasonable
requests by the Union for permission to do so; that Respond-
ent persists and indicates it will continue to persist in such
actions; and that, under the total circumstances here pre-
sented, the only practicably feasible method of communica-
tion between the Union and said employees for the purpose
of the exercise by said employees of organizational rights for
collective bargaining as guaranteed by the Act is personal
contact in the private rooms of said employees within Re-
spondent's described hotel compound, on said employees'
off-duty time.
D. Applicable Principles,- Rationale and Conclusions
In 1945 the Supreme Court had occasion to point out, in
Thomas v. Collins, 323 U.S. 516, 534, that the right of em-
ployees to organize under Section 7 of the National Labor
Relations Act "include[s] their right fully and freely to dis-
cuss and be informed concerning [their] choice [of representa-
tives] .... Necessarily correlative was the right of the union,
its members and officials ... to discuss with and inform the
employees concerning matters involved in their choice."2S In
applying this admonition 7 years later, in 1952, in Marshall
Field & Company, 98 NLRB 88, 97, fn. 21,29 the Board
observed that its storehouse of industrial relations experience
even then, almost 20 years ago, demonstrated that "self-
organization can be and is severely hampered by lack of
assistance from trained, full-time organizers."
Thomas v. Collins had involved the question of attempted
interposition by a state government astride the channel of
communicative access to employees by union representatives.
Also in 1945, a few months after Thomas v. Collins, the
Supreme Court in its landmark decision in Republic Aviation
Corp. v. N.L.R.B., 324 U.S. 793, faced the issue of attempted
interposition by an employer over such communicative access
to its employees on the employer's property, by other em-
ployees seeking to exercise rights guaranteed them under the
Act. Broadly resolving this issue in Republic Aviation, the
Supreme Court sustained the right of employees to engage in
II To the same effect, see NL.R.B., v. Lake Superior Lumber Corpora-
tion, 167 F.2d 147, 151 (C.A 6).
" Modified in other respects 200 F 2d 375 (C A 7).
RALEIGH HOTEL
concerted activities protected under the Act, upon their em-
ployer's property during the employees ' free time , subject to
reasonable regulations ." Republic Aviation had proscribed
union organizational solicitation on its property by its em-
ployees. The Board overturned the blanket proscription, di-
recting Republic Aviation to rescind the rule, so as to permit
such solicitation during the employees ' own time. The Second
Circuit Court of Appeals affirmed ( 142 F.2d 193), as did the
Supreme Court ." In its decision the Supreme Court indicated
that it viewed the problem as one of "working out an adjust-
ment between the undisputed right of self-organization as-
sured to employees under the Wagner Act and the equally
undisputed right of employers to maintain discipline in their
establishments" (324 U. S. at 797-798). As to this , the Court
pointed out that "Like so many others , these rights are not
unlimited in the sense that they can be exercised without
regard to any duty which the existence of rights in others may
place upon employer or employee. Opportunity to organize
and proper discipline are both essential elements in a ba-
lanced society" ( id. at 798). Recognizing that neither of the
cases (i.e., Republic Aviation and LeTourneau ) presented the
situation "like.a mining or lumber camp where the employees
pass their rest as well as their work time on the employer's
premises, so that union organization must proceed upon the
employer's premises or be seriously handicapped "" (id. at
799)-the latter a situation not totally dissimilar to that pre-
sented in the instant case-the Court nevertheless sustained
the Board 's order voiding the employers ' proscription against
solicitation of employees by other employees on company
property on employees ' own time. The Court took occasion
to remind that "opportunity to organize" without "employer
interference" is a keystone legislative purpose of the Act and
"the principle of labor relations which the Board is to foster"
(Id. at 793 and 798).
In 1949, in N.L.R.B. v. Stowe Spinning Co., 336 U.S. 226,
the Supreme Court was confronted with the issue of the right
of free access by a nonemployee union organizer to the em-
ployer's private property consisting of a meeting hall in a
"company town ," in connection with union organizational
activities among the employees . The employees neither lived
on company property nor, as a matter of right, spent their free
time there. Reversing the Fifth Circuit Court of Appeals, the
Supreme Court upheld the Board's determination that the
employer had violated the Act by discriminatorily prohibit-
ing such access to the union under the circumstances shown.
Rejecting the contention of Stowe that the Board had sanc-
tioned the union 's "invading private property .... for a pri-
vate purpose, in the very teeth of the Fifth Amendment.
. [and principles firmly imbedded ] `from Magna Charta on
down' " (336 U.S. at 229), the Supreme Court , reminiscing on
Republic Aviation and LeTourneau, commented that "We
mention nothing new when we notice that union organization
in a company town must depend , even more than usual, on
a hands-off attitude on the part of management . And it is
clear that one of management's chief weapons , in attempting
to stifle organization , is the denial of a place to meet. We
30 To the same effect see , e g. N.LR B v. Lake Superior Lumber Corpo-
ration, 167 F 2d 147 (C A. 6); N.L.R.B. v. American Furnace Co., 158 F.2d
376, 380 (C A 7); NL.R.B. v May Department Stores Co., 154 F 2d 533
(CA. 8), cert denied 329 U S 725
" A companion case , concerned with the same proscription against em-
ployee solicitation by other employees on employer property, involved Le-
Tourneau Company of Georgia. The decision of the Fifth Circuit Court of
Appeals in that case (143 F 2d 67) reversing the Board's annulment of the
proscription, was reversed by the Supreme Court 324 U S. 793
" There had been such cases, alluded to in the Supreme Court's opinion,
324 U S. at 799, fn 3, in which access had been authorized by the Board
even to nonemployee union organizers.
729
cannot equate a company-dominated North Carolina mill
town with the vast metropolitan centers where a number of
halls are available within easy reach of prospective union
members. We would be ignoring the obvious were we to hold
that a common meeting place in a company town is not an
important part of the company's business. The question is of
course one of degree. But isolated plants must draw labor,
and an element in that drawing power is a community hall
of some kind.... the Board may weigh the employer's ex-
pressed motive in determining the effect on employees of
management's otherwise equivocal act." (Id. at 229-230).
It will have been noted that Stowe did not involve the
question of the right of nonemployee organizers to come upon
employer property for the purpose of access to employees-
a question presented to the Court 7 years later in Babcock &
Wilcox, as will now be shown.
In 1956, in another landmark decision, N.L.R.B. v. Bab-
cock & Wilcox Co., 351 U.S. 105, the Supreme Court faced
the question of the extent if any of permissible employer
interposition over communicative access to its employees on
its property by union representatives (i.e., other than the em-
ployer's employees) in connection with perfecting employees'
rights secured under the Act." To begin with, the Court drew
a distinction between the situation, on the one hand, involv-
ing organizational activities by employees themselves on'their
employer's property, and the situation, on the other hand,
involving organizational activities by nonemployees (such as
union organizers) on the employer's property. Concerning
the latter, the Court held that since (I) the employers' plants
were located in the proximity of established communities
where a large proportion of the employees lived within rea-
sonable reach, (2) normal communicative channels existed
and, additionally, miscellaneous efficacious publicity media
were readily available, and (3) "the employer's notice or or-
der does not discriminate against the union by allowing other
distribution" (351 U.S. at 112), no necessity had been shown
for requiring the employees to permit the union to distribute
literature on the employer's property, inasmuch as "other
means are readily available" (id. at 114).
It is to be noted that the employees in Babcock & Wilcox
were not housed on the employer's premises, much less in any
fenced-in, guarded and patroled compound as in the instant
case, and that-also unlike the situation in the instant case
-the employers in no way impeded the free access of union
organizers to the employees' quarters. The Court expressly
cautioned:
This is not a problem of always open or always closed
doors for union organization on company property. Or-
ganization rights are granted to workers by the same
authority, the National Government, that preserves
property rights. Accommodation between the two must
be obtained with as little destruction of one as is consist-
ent with the maintenance of the other. The employer
may not affirmatively interfere with organization; the
union may not always insist that the employer aid orga-
nization. But when 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 com-
munication of information on the right to organize.
" The three cases eventuating in the decision here referred to as Babcock
& Wilcox reached the Supreme Court on certiorari to the Fifth, Sixth, and
Tenth Circuit Courts of Appeals, which had varyingly determined the issue
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
... The right of self-organization depends in some
measure on the ability of employees to learn the advan-
tage of self-organization from others. Consequently, if
the location of a plant and the living quarters of the
employees place the employees beyond the reach of rea-
sonable union efforts to communicate with them, the
employer must allow the union to approach his em-
ployees on his property. [351 U.S. 112-13.]
Embellishing on the foregoing 2 years later, in 1958, in
N.L.R.B. v. United Steelworkers of America, CIO [NuTone,
Inc.], 357 U.S. 357, the Supreme Court pointed out that
although a union may not "as a matter of abstract law, under
all circumstances" insist upon "every possible means of
reaching the minds of individual workers," nor insist on "a
medium of communication simply because the employer is
using it" (id. at 364), nevertheless when "an imbalance in the
opportunities for organizational communication" is shown,
the employer must make his property accessible to outside
organizers . Id. at 362. A "vital consideration in determining
the validity of a no-solicitation rule" is whether it "truly
diminished the ability of the labor organizations involved to
carry their messages to the employees ," as well as whether "a
valid rule has been fairly applied." Id. at 363_
In and since 1965 there have continuingly been presented
to the Board further cases tendering these issues. Perhaps the
leading such case, S. & H. Grossinger's Inc., 156 NLRB 233
(1965), enfd. as modified 372 F.2d 26 (C.A. 2, 1967), involved
another Catskill Mountains resort hotel close to Liberty, New
York, not far from the Raleigh Hotel with which we are here
concerned. In that case, too, a hotel which , while not com-
pletely fenced-in or inaccessible, closely guarded and patroled
by armed guards as in the instant case (but with a perma-
nently guarded main gate sentry), was located on a tract of
land on which a substantial proportion of hotel employees
were quartered, refused to permit access by union organizers
to the hotel employees ' quarters . There, too , as here, some
employees commuted in cars, working "odd shifts in order to
provide continuous services in all departments" (327 F.2d at
29). There, too, as here, as pointed out by the Court of Ap-
peals for the Second Circuit in,enforcing this aspect of the
Board 's determination and order ( id, at 29-30):
The Union's attempts to reach employees at this point
[i.e., gate entrance] have been ineffective since the cars
do not stop here except that some are stopped momen-
tarily for a red traffic light, and since m any event it is
difficult or impossible to distinguish between guests and
employees.
No effective alternatives are available to the Union in
its organizational efforts. The resident employees have
no telephones in their rooms . Radio and newspaper ad-
vertising are expensive and relatively ineffectual. More-
over as far as radio is concerned , there was no single time
at which a major proportion of employees would be off
duty and free to listen to a message broadcast by the
Union. As this Court said in N.L.R.B. v. United Aircraft
Corp., 324 F.2d 128, 130 (2d Cir. 1963), cert. denied, 376
U.S. 951 (1964):
The predictable alternatives [to personal .con-
tacts] bear without exception the flaws of greater ,
expense and effort , and a lower degree of effective-°-
ness. Mailed material would be typically lost in the
daily flood of printed matter which passes with little
impact from mailbox to wastebasket. Television
and radio appeals, where not precluded entirely by
cost , would suffer from competition with the fami-
ly's favorite programs and at best would not com-
pare with personal solicitation . Newspaper adver-
tisements are subject to similar objections.
While some organization work can be done by em-
ployees who are willing to solicit fellow employees, it is
obvious that , lacking as they do the requisite special
training and experience, they cannot convey the Union's
appeal with anything like the effectiveness of profes-
sional union organizers.
We read Re ublic Aviation Corp. v. N.L.R.B., 324
U.S. 793 (1945), N.L.R.B. v. Stowe Spinning Co., 336
U.S. 226 (1949) and N.L.R.B. v. Babcock and Wilcox
Co., 351 U.S. 105 (1956) to require the Board in each
case to balance the necessities of the Union for direct
access to employees against the employer 's right of con-
trol over his own property and any detriment which
might result from the admission to that property of
union organizers . In the Babcock case , the Court said at
p. 112:
This is not a problem of always open or always
closed doors for union organization on company
property. Organization rights are granted to work-
ers by the same authority, the National Govern-
ment, that preserves property rights. Accommoda-
tion between the two must be obtained with as little
destruction of one as is consistent with the mainte-
nance of the other. The employer may not affirma-
tively interfere with organization; the union may
not always insist that the employer aid organiza-
tion. But when the inaccessibility of employees
makes ineffective the reasonable attempts by
nonemployees to communicate with them through
the usual channels, the right to exclude from prop-
erty has been required to yield to the extent needed
to permit communication of information on the
right to organize.
The determination of the proper adjustment rests
with the board ....
* * * *
In the Babcock case the employees lived in communi-
ties close to the plant. Their. quarters were "in reasonable
reach" (p. 113). Here the majority of the employees live
on the employer's premises. They cannot be reached by
any means practically available to union organizers. As
against these considerations Grossinger 's raises only its,
proprietary interest. It shows no detriment that would
result from the admission to its property of the Union's
representatives under those reasonable regulations as to
place, time and number which the Board 's order con-
templates.
The court of appeals accordingly enforced "the Board's order
in so far as it requires the Respondent [hotel] to permit
nonemployee union organizers to come on its premises in
order to solicit employees." Id. at 30.
Three years after its decision in Grossinger's, the Court of
Appeals for the Second Circuit issued its decision in N.L.R.B.
v. Kutsher's Hotel and Country Club, Inc., 427 F.2d 200
(C.A. 2), involving the Kutsher hotel of the same locale as
Grossinger's and the Raleigh. In Kutsher's, the court, distin-
guishing Grossinger 's on the basis (among others) of the re-
stricted access (much less so than in the instant case) to the
Grossinger grounds, denied enforcement of the Board's order
(175 NLRB No. 76). Thus, in Kutsher's, there is no fenced-in
or guarded compound; the hotel is located on both sides of a
publie`road; to go between quarters and work, the employees
must cross this public road ; employees wear distinctive uni-
forms to and from work and are thus capable of ready identifi-
RALEIGH HOTEL
cation; employees' work hours are such that large numbers
report at approximately the same time; union organizational
efforts were "minimal," with "no proof' of "any effort" (427
F.2d at 201) to reach employees during peak seasons; there
was "no barrier to communication" nor "reasonable" union
effort at communication (id.); "other means" of reaching the
employees were, under the circumstances, "readily available"
(id.) to the union; there was ready accessibility of employees
to the union representatives; and there was, finally, no ele-
ment of discrimination in the employer's refusal of what the
court under the circumstances characterized as the union's
attempted "invasion of private property" (id. at 202). It is to
be noted that none of these factors is present in the instant
case. 34
In the 1970 case of Tamiment, Inc., 180 NLRB No. 171,
likewise involving a summer resort, near East Stroudsburg,
Pennsylvania, the Board adopted the decision of Trial Exam-
iner Bernard J. Seff finding Respondent in violation of the Act
through its refusal to permit outside union organizers to enter
its grounds through its guarded gate, for the purpose of union
organizational activity. Tamiment stresses the communica-
tive difficulties besetting the union representatives in attempt-
ing alternative methods of reaching employees, considering
the fact that substantial numbers were quartered on the em-
ployer's grounds while others were residentially dispersed
throughout the surrounding rural area, the employees' split
shifts, the transitory nature of their employment, the high
employee turnover, and other factors also present in the in-
stant case.35
We proceed to application of the foregoing established
principles to the facts here found.
The main factual boundaries of the situation here pre-
sented are that Respondent maintains a fenced-in and for
practical purposes impenetrable compound, policed around
the clock by armed guards and sentries; at least a substantial
number, if not most, of its employees are quartered in their
own rooms in their own buildings within that compound;
employees' work shifts are split, staggered, and distributed
34 Unlike Respondent, I do not read Kutsher's as assuring an employer
subject to the governance of the National Labor Relations Act the un-
qualified right to place an absolute interdict upon private visits by union
representatives to the paid personal quarters of employees during their own
time, upon the sole basis that the particular visitors or invitees are union
representatives, under the circumstances of the instant case, involving a
sealed-off compound under constant armed guard and surveillance, where
those visitors or invitees will in no way mingle with Respondent's customers
or interfere with its trade. Nor do I read Kutsher's, as Respondent appears
to, as indicating that an employer may cut down or narrow his employees'
rights because he has not yet been found or otherwise charged to have
violated the Act, or that he is not the subject, so to speak, of a two-count
indictment Finally, on the question of just how far a union is required to
pursue off-premises will-o-the-wisps under the circumstances shown in the
instant case, I also do not read Kutsher's as supporting the proposition that
the framers of the Act intended to limit its supposed benefits, including
collective bargaining, to employees serviced by affluent labor organizations
possessing sufficient economic wherewithal to mount television, radio, and
similarly glamorous and costly campaigns , quite irrespective of whether
efficacious or warranted by the circumstances.
" Finally, Pines Hotel, TXD-689-70, decided in November 1970, also
by Trial Examiner Seff and now before the Board, involved still another
Catskill Mountains resort hotel In recommending dismissal of the com-
plaint in that particular case, Trial Examiner Seff expressly points out that
the hotel grounds, abutting on a public thoroughfare, are not enclosed and
"not fenced in at the entrance or the exit"; there is no indication or mention
of any access guard or sentry, many of the hotel employees live across the
public road from the hotel, employees wear distinctive uniforms and there
is no problem of recognition of or access to the employees, and, notwith-
standing all of the foregoing, the union failed to exercise any reasonable
effort to communicate with employees. The features distinguishing that
situation from the one presented in the instant case are plain.
731
over many hours of the day and night; employees' permanent
domiciles (i.e., their homes while not in work status with
Respondent) are widely scattered and distant from the hotel
compound; Respondent has absolutely proscribed and de-
barred union representatives as a class from entering its com-
pound to talk to employees even within the privacy of the
employees' paid rooms on the employees' own time; and
Respondent has not shown that any harm or potential harm
would accrue to it from permitting such visitation, under
reasonable regulation, but instead rests its refusal, and its
determination to persist therein, upon assertion of a naked
alleged "property" right.
We begin, then, with Respondent's insistence that it has the
absolute and unlimited right to debar union representatives
from visiting its employees on its premises. But, few if any
rights are any longer absolute. One person's rights must con-
stantly, even changingly, be accommodated to other persons'
rights. Rights are continuously being contracted, expanded,
and otherwise kneaded and molded, by public policies legisla-
tively enacted and judicially or administratively interpreted.
Ideally, the rights of all, even when in seeming collision,
should be synchronized and brought into fair accommodative
balance. If, however, this ideal cannot be attained, the rights
of one must yield to the rights of others, at least in part,
particularly where both rights can be accorded reasonable
respect without substantial violence to either. It is of course
easy to think in terms of absolutes and then to apply them.
But one of the highest services of law, perhaps signally in its
application by an administrative agency in the sometimes
nettlesome thicket of industrial relations, is to reconcile what
appear to be conflicting rights so that none are destroyed or
ignored. We are required to heed the admonition of our high-
est Court, illustrated in Mr. Justice Holmes' oft-cited "cry of
fire" example (Schenck v. United States, 249 U.S. 47, 52) that
even the most basic "rights" are relative or relational rather
than absolute. And we are no less required to adhere to the
teachings forcefully laid down for us in the Supreme Court
and other controlling pronouncements quoted above. In
Marsh v. Alabama, 326 U.S. 501, 505-506, upholding the
right of a pedestrian to utilize the sidewalk of a company-
owned town contrary to regulations of its management, the
Court stated: "We do not agree that the corporation's prop-
erty interests settle the question.... Ownership does not
always mean absolute dominion. The more an owner, for his
advantage, opens up his property for use by the public in
general, the more do his rights become circumscribed by the
statutory and constitutional rights of those who use it." More
specifically, "It is not every interference with property rights
that is within the Fifth Amendment .... Inconvenience, or
even some dislocation of property rights, may be necessary in
order to safeguard the right to collective bargaining."
N.L.R.B. v. Cities Service Oil Co., 122 F.2d 149, 152 (C.A.
2). See also N.L.R.B. v. Jones & Laughlin Steel Corp., 301
U.S. 1, 43, 44; Art Metals Construction Co. v. N.L.R.B., 110
F.2d 148, 150 (C.A. 2). "We have long passed the point where
the bundle of property rights can be used arbitrarily or capri-
ciously to restrict a worker's freedom of association or expres-
sion" (Clark, J., in N.L.R.B. v. United Aircraft Corp., 324
F.2d 128, 131). It is inescapable from a close reading of the
applicable judicial and Board pronouncements, collected
above, that Respondent here overstates its "property rights"
by insisting on the absolute and unqualified "right" to ex-
clude union representatives as a singled-out class from its
policed compound, in such a way as in effect to cordon off and
sanitize its employees from meaningful contact with them
even'in the privacy of the employees' own paid rooms on the
employees' free time. Under the circumstances shown, en-
forcement of such a claimed right at gunpoint by its security
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guards constitutes an unnecessary, coercive restraint upon its
employees' practicable and reasonable exercise of their orga-
nizational rights guaranteed them by Congress as spelled out
in that part of the law of the land known as the National
Labor Relations Act and reenacted as the Labor Manage-
ment Relations Act. Respondent has in no way shown that
it would suffer cognizable harm by permitting its employees
to receive union personnel in the privacy of the employees'
own paid quarters on nonworking time, in the same way that
those employees may receive other guests or business invitees.
To be sure, Respondent would doubtless rather not have its
employees unionized, and to the extent it might have to deal
with them collectively rather than individually as at present
Respondent's economic advantage may be reduced. But Re-
spondent does not have the unqualified right to escape from
the possible necessity of dealing with its employees collec-
tively in accordance with national public policy, by effectu-
ally preventing them from, or restraining or coercing them in,
the exercise of organizational rights secured to them by law.
One might equally argue that he need not bargain collectively
because it is advantageous for him not to. The plight of
Respondent's employees seeking lawfully to organize, under
the circumstances shown, is for practical purposes insupera-
ble unless they can speak and transact with their potential
representatives in some appropriate and reasonably conven-
ient place; and what more appropriate or reasonable place is
there than the place where they live? Many if not most of
these employees work split, long, irregular, or odd shifts; to
the limited extent that it exists, transportation is expensive,
perhaps prohibitively so; convenient assembly places are
lacking; the overall work hours of the various categories of
employees are not the same; local geography creates awkward
problems of getting around; employee turnover is great; tele-
phone communication is utterly impractical; utilization of
"glamorous" media such as television and radio is not only
highly costly, but of extremely dubious practicability in view
of the dispersion of working hours and other factors, not the
least of which is that there is no reason to assume that em-
ployees who are assigned as many as six to the room are
supplied with television sets nor that they would watch the
same program. For practical purposes, to absolutely deny to
such employees, quartered on a sealed compound, the right
to receive union visitors is in effect to deny them access to the
union message or the mechanism for exercise of their
statutorily guaranteed right to bargain collectively. It is un-
necessary to belabor the patent, overtly coercive restraint
bristling from enforcement of the employer excommunica-
tion through its maintenance of a focal gate manned by gun-
carrying private police, at least some of whom are off-duty
local police officials or prison guards.
In what seems a simplistic attempt to overcome the unfa-
vorable flavor of the impenetrable barbed-wire topped fences
enclosing its closely guarded compound, Respondent asserts
that it would absolutely proscribe any visits by union repre-
sentatives even in the absence of the fences, gate, and guards.
But such a pat assertion does, not erase either the fact or the
effect of the fences, gate, and guards. And surely "The [Union
is] not required to risk prosecution for trespass in order to
assert its right to organize."' Joseph Bancroft and Sons Co.,,
140 NLRB 1288, 1291. No evidence has been presented that
by agreement, understanding, arrangement, or posted regula-
tion or requirement, such a limitation has been placed upon
occupants of rooms in the buildings within the compound-
whether they be patrons of the hotel or employees who are
charged for the rooms (or who receive their use as the equiva-
lent of part of, their pay). A rightful occupant of premises
normally has the privilege and power to use the premises for
any lawful purpose not injurious to the reversion. Cf. Corning
v. Troy Iron and Nail Factory, 40 N.Y 191. This includes the
right of the occupant's guests, visitors, or business invitees to
make reasonable use of the occupant's usual means of ingress
and egress, without interference by the owner. Cf. Federal
Waste Paper Corporation v. Garment Center Capitol, 268
App. Div. 230, 51 N.Y.S.2d 26, affd. 294 N.Y. 714, 61 N.E.2d
451. It seems clear that by enforcing the claimed right abso-
lutely to debar any union representative from entering the
compound even to go directly to employees' rooms in their
staff buildings, removed from and without contact with hotel
patrons, in order to speak to employees in the privacy of their
own quarters (for which they pay or are charged) while not
at work, Respondent is directly screening its employees' pri-
vate guests for reasons unconnected with their employees'
jobs or the guests' criminal, moral, or otherwise lawfully
justifiable unacceptability. In so doing, Respondent is inter-
fering with, restraining, and coercing those of its employees
who are there-regardless of who or how numerous they are
-from the exercise and enjoyment of the right to organize
and associate themselves for collective bargaining, thereby
aborting or attempting to abort a right guaranteed to those
employees by Congress in the Act. Under the circumstances
shown, the employees' private rooms in their staff buildings
within the compound are the "natural site where employees
are accessible for organizational efforts" (Montgomery Ward
& Co., Inc. v. N..L.R.B., 339 F.2d 889, 891 (C.A. 6), quoting
from the Board's decision in the same case, 145 NLRB 846,
849). The situation presented is wholly unlike a retail store
or even a factory, where interference with customers or dis-
ruption of the employer's operations or of the employees'
work could ensue from union representatives' visits, even on
employees' free time.36 No disruption of hotel operations or
interference with patrons has in any way been established,
nor is it claimed. And, any feared interference could in any
event readily be averted by reasonable employer rules as to
time and place of contact. See N.L.R.B. v. S. & H. Grossin-
ger's Inc., 372 F.2d 26, 30 (C.A. 2). As several times reiter-
ated, Respondent rests on assertion of a naked right to debar
union representatives from entering its compound at all times
and under all conditions.
Respondent emphasizes that the Union can see and speak
to its employees outside of the compound and does not have
to come in. Although the Union does not "have" to come in
-indeed, it is not permitted to-the practical and realisti-
cally inescapable effect of its not going in is to deny to the
employees any effectual means of exercising their organiza-
tional rights under the Act, for reasons which have been
described. To be sure, Respondent's employees are not shack-
led to their bedposts or other portions of Respondent's com-
pound. It is true that, as Respondent insists, they are "free"
to come and go. Under the circumstances shown, however,
even the exercise of this freedom could not effectively con-
duce to fruition of their organizational rights under the Act.
In the situation here, for practical purposes unless the em-
ployees living at the hotel are permitted during their off-duty
time to speak to union representatives in their own rooms
within the compound, they are deprived of the union message
and therefore the means for organizing themselves for that
collective bargaining which it is the declared public policy to
permit them to pursue. It is not to be assumed that Congress
36 It has been recognized that, because of the nature of their business,
retail department stores and similar establishments may properly exclude
union visits or solicitation on selling floors or other customer-trafficked
areas, even on nonworking time See Famous-Barr Co (May Department
Stores Company), 59 NLRB 976, 979-981, enfd. 154 F 2d 533 (C A 8),
cert denied 329 US 725, Marshall Field & Company, 98 NLRB 88,
modified on other grounds 200 F 2d 375 (C A. 7)
RALEIGH HOTEL
in guaranteeing employees the right to organize themselves
for collective bargaining intended to make it impracticable
for them to do so, or to sanction the interposition by employ-
ers of burdensome and practically insurmountable restraints
upon employees' exercise of that right, so as to render illusory
the realization of the Act's intended benefits.
A further and distinct aspect of illegality is added here by
the discriminatory nature of Respondent's absolute interdict
upon private visiting by union representatives as a singled-out
class. No comparable restriction against other categories of
visitors has been shown. Indeed, Respondent's principal, Hal-
bert, conceded that there is no similar prohibition or even
solicitation of employees on hotel premises, by other than
union representatives; and Respondent's general manager,
Zalkind, conceded that there is no "posted or other restric-
tion[s] as to employees receiving a visitor in [the] rooms"
which they occupy in the staff buildings within the hotel
compound.
It may, finally, be appropriate to conclude on a note fre-
quently emphasized by the courts, reiterated by the Board in
The Wm. H. Block Company, 150 NLRB 341, 342: "Our
function under the Act, the Supreme Court has said [in
N. L. R. B. v. United Steelworkers of America, CIO [Nu Tone,
Inc.], 357 U.S. at 364] requires us to avoid `mechanical an-
swers' in seeking a `solution of this non-mechanical, complex
problem in labor-management relations.' Thus, the evalua-
tion of the various factors bearing on the validity of the
[solicitation] rule must relate to the `actualities of industrial
relations.' " As has been emphasized from the highest source,
exercise of that function "is not a problem of always open or
always closed doors for union organization on company
property .... Accommodation between the two must be ob-,
tained with as little destruction of one as is consistent with
the maintenance of the other." N.L.R.B. v. Babcock & Wil-
cox Co., 351 U.S. 105, 112. If the right of employees to
bargain collectively is to be given meaningful effect in the
context of the particular situation and circumstances here
presented, it must mean that the employees here, working in
the physical setting and under the irregular hours that they
do, should be accorded the right-subject to reasonable regu-
lation-to receive union visitors (the only persons from
whom they can practicably be educated as to their statutory
rights), just as they receive other personal visitors or business
invitees, in the privacy of their own quarters within the com-
pound where they live. In this way, the employees' rights will
not be destroyed, while the employer's rights will be main-
tained; or vice versa, if one prefers to put it that way. Re-
spondent has failed to demonstrate any cogent reason why its
employees' freedom of association within the privacy of their
own living quarters should be restricted in the discriminatory
and unreasonable way it mistakenly insists it has the absolute
right to do on the theory that otherwise there would be a
technical trespass on its property. Although the employees'
quarters,.humble though they be, are their "castle," Respond-
ent nonetheless insists it is the keeper of the moat.
Upon the entire record presented, it is found that Respond-
ent's employees' exercise of their right to organize for collec-
tive bargaining under the Act, in the particular circumstances
here shown and found, depends upon permitting those em-
ployees who are quartered in staff buildings within Respond-
ent's compound the right to receive and speak to outside (i.e.,
nonemployee) union representatives in such quarters during
the employees' own time (Cf. Republic Aviation Corp. v.
N.L.R.B., 324 U.S. 793, 799); Respondent's described abso-
lute exclusionary rule of all union representatives has placed
an unreasonable impediment on the freedom of communica-
tion essential under the circumstances to the exercise of its
employees' right to self-organization under the Act (LeTour-
733
neau Company of Georgia, 54 NLRB 1253, 1262, affil. 324
U.S. 793, 801, et, seq.); Respondent's described absolute ex-
clusionary rule of all union representatives for practical pur-
poses insulated employees quartered in staff buildings within
Respondent's compound against union representatives,
thereby depriving such employees of their right to organize
for collective bargaining under the Act, including the "abil-
ity.... to learn the ' advantages of self-organization"
(N.L.R.B. v Babcock & Wilcox Co., 351 U.S. 105, 113);
Respondent's absolute debarring of union representatives
seeking to enter its compound for the purpose of meeting and
speaking with employees quartered in staff buildings there,
during said employees' own time, was in interference with
and restraint and coercion of said employees' organizational
rights under the Act; Respondent has failed to establish rea-
sonable or any necessity for the continued enforcement of its
policy of absolutely excluding union representatives seeking
to enter its compound for the aforedescribed limited purpose,
or legal detriment to itself in case of the abrogation of said
policy; Respondent's continued enforcement of said policy,
under the circumstances shown and found, has been and is
in interference with and restraint and coercion of employees'
rights under Section 7, and thereby in violation of Section
8(a)(1), of the Act; and a balancing of the rights and interests
of the parties and of the employees, under the circumstances
shown and found, warrants and requires abrogation of Re-
spondent's described policy and the permitting of its em-
ployees quartered within its compound to receive, speak, and
deal with union representatives concerning their rights under
the Act, within the rooms of said employees on their own
time, subject to reasonable regulation. Cf. Supreme Court
cases cited supra; N. L.. .R.B. v. S. & H. Grossinger's Inc., 372
F.2d 26 (C.A. 2).
Upon the foregoing findings and the entire record, I state
the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Assertion of jurisdiction herein is proper.
3. By maintenance and enforcement of its policy absolutely
debarring and excluding union representatives from entering
its compound for the purpose of communicating with Re-
spondent's employees quartered therein, within said em-
ployees' own rooms on their own time, concerning lawful
organizational rights and matters, under the circumstances
hereinabove shown and found, Respondent has interfered
with, restrained, and coerced, and is continuing to interfere
with, restrain, and coerce, its employees in the exercise of
their rights guaranteed by Section 7 of the National Labor
Relations Act, as amended, and has thereby violated and is
continuing to violate Section 8(a)(1) of said Act.
4. The unfair labor practices set forth in Conclusion of Law
3, supra, affect commerce within the meaning of Section 2(6)
and (7) of said Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act, I shall
recommend that it be required to cease and desist therefrom
and take certain affirmative action designed to effectuate the
policies of the Act.
I shall recommend that Respondent be required to cease
and desist from continuing or giving effect to its policy or rule
absolutely barring nonemployee representatives or organizers
of the Union, or any other labor organization, from reasona-
ble access to its premises for the purpose of soliciting em-
ployees residing on the premises for union membership or for
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assisting said employees in regard to their self-organizational in Section 8(a)(3) of the Act, as modified by the Labor-Man.,
rights in said employees' quarters on their free time. agement Reporting and Disclosure Act of 1959.
As I have indicated, rights are resilient rather than rigid, 2. Take the following affirmative action, necessary to effec-
so that all in a democratic society may benefit from their
common exercise and not be harmed by their unqualified
individual assertion. Accordingly, while Respondent's em-
ployees should be permitted reasonable exercise of>their, right
to receive and speak and deal with union representatives in
the privacy of the employees' personal quarters on-.the em-
ployees' own time , the Union should not be afforded the right
of unlimited access to Respondent 's grounds , nor access in
such a way as to impede Respondent 's business operations or
interfere with its customers . Cf. N.L. R.B. v. Stowe Spinning
Co., 336 U.S. 226, 232-233, with order in S. &K. Grossinger's
Inc., 156 NLRB 233, 266 , enfd. as modified 372 F.2d 26
(C.A. 2). Accordingly, the recommended Order will not per-
mit the Union to have access to Respondent 's grounds for any
purpose other than the limited purpose of going directly to
and from the living quarters of respondent 's employees who
are quartered on its grounds , in order to discuss the ' transact
lawful organizational matters with them under the Act; and
Respondent will be permitted fairly and reasonably to regu-
late the number of such union representatives who may thus
enter and visit at the same time, and to impose reasonable
limits upon visiting hours.
Upon the foregoing findings of fact , conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:"
ORDER
Respondent , H & G Operating Corp. d/b/a Raleigh Hotel,
and its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Maintaining in effect or enforcing a policy or rule which
in violation of Section 8(a)(1) of the National Labor Relations
Act, as amended , unqualifiedly forbids or prohibits union
representatives or organizers from entering its hotel com-
pound and premises for the purpose of visiting and com-
municating concerning or transacting union organizational
matters or any other rights of said employees under the Act,
with any of Respondent 's employees within the rooms of said
employees within said compound , on said employee's own
time.
(b) Unqualifiedly barring nonemployee union representa-
tives or organizers from entering its hotel compound and
premises for the purpose of visiting and discussing and trans-
acting lawful organizational matters under the Act, with Re-
spondent 's employees quartered therein , during said em-
ployees' own time; provided, however, that such entry and
access may be fairly and reasonably regulated by Respondent
as indicated in the "Remedy" portion of the Decision of
which this recommended Order forms a part.
(c) In any like or related manner interfering with , restrain-
ing, or coercing employees in the exercise of their rights to
self-organization , to form , join, or assist any labor organiza-
tion , to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the pur-
poses of collective bargaining or other mutual aid or protec-
tion , 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 authorized
" In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 41 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
tuate the policies of the Act:
(a) Forthwith rescind its policy described in paragraph l,a,
of this recommended Order,, as well as all rules, orders, and
instructions to its security guards and other personnel to
carry out and enforce such policy; subject, however to the
proviso set forth in paragraph l,b, of this recommended Or-
der.
(b) Permit its employees to receive nonemployee union
representatives and organizers, and permit such representa-
tives and organizers to visit said employees, on said em-
ployees' own time and in said employees' rooms within Re-
spondent's hotel compound and premises, at reasonable
times, for the purpose of discussing and transacting lawful
organizational matters or any other rights of employees un-
der the National Labor Relations Act, as amended; subject to
the proviso set forth in paragraph 1,b, of this recommended
Order.
(c) Post at its hotel premises in South Fallsburg, New
York, copies of the attached notice marked "Appendix,""
Copies of said notice, on forms provided by the Board's Re-
gional Director for Region 3, shall, after being duly signed by
Respondent's authorized representative, be posted by Re-
spondent immediately upon receipt thereof, and be main-
tained 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 Re-
spondent to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify said Regional Director, in writing, within 20
days from receipt of this Decision, what steps Respondent has
taken to comply herewith."
C,
3e In the event that the Board's 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."
19 In the event that this recommended Order is adopted by the Board,
after exceptions have been filed, this provision shall be modified to read.
"Notify said Regional Director, in writing, within 20 days from the date of
this Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial before a Trial Examiner of the National Labor
Relations Board, at which all sides had the opportunity to
present evidence and arguments, it has been decided that we,
Raleigh Hotel, have violated the National Labor Relations
Act. We have been ordered to post this notice and to carry
out its terms.
The National Labor Relations Act gives you, as an em-
ployee, these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative
of your own choosing
To act together with other employees to bargain
collectively or for other mutual aid or protection
If you wish, not to do any of these things.
RALEIGH HOTEL
Accordingly, we assure you that:
WE WILL NOT do anything that violates any of your
rights listed above.
WE WILL cancel our policy prohibiting outside union
representatives and organizers from entering the Raleigh
Hotel grounds_at any time.
WE WILL cancel our orders to the guards, patrols, and
others prohibiting outside union representatives and or-
ganizers from entering the Raleigh Hotel grounds at any
time.
WE WILL allow outside union representatives and or-
ganizers to enter the Raleigh Hotel grounds and prem-
ises to visit you in your rooms at reasonable hours when
you are not at work, in order to talk to you about your
rights under the National Labor Relations Act, includ-
ing your right to join the Union and engage in collective
bargaining with us.
All of you are free to join, assist, or be assisted by Local
343, Hotel & Restaurant Employees & Bartenders Interna-
tional Union, AFL-CIO, who filed the charge against us in
this case, or any other labor organization. If you do not wish
735
to do so, you do not have to do so. Either way, it is your
choice, and one way or the other you will not be punished or
rewarded by us.
H & G OPERATING
CORP. D/B/A RALEIGH
HOTEL
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
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, 7th
Floor, Drislane Building, 60 Chapel Street, Albany, New
York 12207, Telephone 518-472-2215.