Seattle-Frist National Bank

National Labor Relations Board - Board Decisions

Aug 1, 1979

243 N.L.R.B. 898 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Seattle-First National Bank and Hotel, Motel, Res-
taurant Employees and Bartenders Union Local 8,
AFL-CIO. Case 19-CA-10591
August 1, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
Upon charges duly filed, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 19, issued a complaint and notice
of hearing on August 25, 1978, against Seattle-First
National Bank. The complaint alleged that Respon-
dent had engaged in, and was engaging in, certain
unfair labor practices affecting commerce within the
meaning of Section 8(a)(l) and Section 2(6) and (7) of
the National Labor Relations Act, as amended. Cop-
ies of the charge and complaint and notice of hearing
were duly served on the parties. On September 5,
1978, Respondent filed its answer to the complaint
denying the commission of unfair labor practices and
requesting that the complaint be dismissed.
Thereafter, the parties entered into a stipulation of
facts and jointly moved to transfer this proceeding
directly to the Board for findings of fact, conclusions
of law, and Order. The parties waived a hearing be-
fore, and the making of findings of fact and conclu-
sions of law by, an Administrative Law Judge, and
stipulated that no oral testimony is necessary or de-
sired by any of the parties. The parties also agreed
that the charge, complaint, and notice of hearing, the
answer, and the stipulation of facts, including exhib-
its, constitute the entire record in this proceeding.
On March 5, 1979, the Board issued its order ap-
proving stipulation, transferring the proceeding to the
Board, and setting a date for filing briefs. Thereafter.
Respondent and the General Counsel filed briefs.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the stipulation, includ-
ing exhibits, the briefs, and the entire record in this
proceeding and hereby makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Seattle-First National Bank is a national banking
association in Seattle, Washington, where it provides
commercial banking and related services. During the
past 12 months Respondent, in the course and con-
duct of its business, had gross sales of goods and ser-
vices valued in excess of $50,000. Respondent also
sold and shipped goods or provided services valued in
excess of $50,000 to customers outside the State of
Washington and to customers within that State who
were directly engaged in interstate commerce.
The complaint alleges, Respondent admits, and we
find that Seattle-First National Bank is, and has been,
engaged in commerce within the meaning of Section
2(6) and (7) of the Act. We find that it will effectuate
the purposes of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOI.VED
The complaint alleges, Respondent admits, and we
find that Hotel, Motel, Restaurant Employees and
Bartenders Union Local 8, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR I.ABOR PRACTI(CE
Respondent owns and operates the Seattle-First
National National Bank Building. Approximately
one-third of the 50-story office building is occupied
by Respondent's head office branch, while the re-
maining space is leased to commercial, professional,
retail trade, and other tenants. One of the retail trade
tenants is the Mirabeau restaurant which, along with
a stock brokerage firm, occupies the 46th floor. In
April 1978 the Union and the Mirabeau commenced
negotiations for a new collective-bargaining agree-
ment to replace one expiring May 31, 1978. On July
12, 1978, the parties discontinued negotiations and 2
days later Mirabeau employees struck in support of
their contract demands. The Union stationed pickets
on the public sidewalks at every' entrance to and exit
from the bank building. The pickets carried placards,
handed out leaflets, and discussed their position in the
labor dispute with willing listeners.
In addition to the activity on the public sidewalks,
the Union assigned one or two of its members to the
46th floor of the bank building during the Mirabeau's
lunch and dinner hours. These individuals, including
at least one Mirabeau employee, distributed leaflets
in the foyer adjoining the Mirabeau and advised po-
tential restaurant customers of the labor dispute. The
46th floor foyer is under the exclusive control of Re-
spondent.
On July 14, 1978, the day that the Union began
handbilling inside the bank building, Respondent in-
formed the individuals on the 46th floor that they
were trespassing, demanded that they leave the build-
ing, and threatened them with arrest if they failed to
do so. The individuals refused to leave, and Respon-
dent sought injunctive relief in state court. The in-
243 NLRB No. 145
898
SEATTLE-FIRST NATIONAL BANK
junction proceedings were stayed, however, when the
court ruled that its jurisdiction had been preempted.
The Union has continued to assign members to the
46th floor, except that since August 25, 1978, none of
these individuals have been Mirabeau employees.
The General Counsel contends that the strike-re-
lated activity inside Respondent's building is pro-
tected under the Act. It asserts that the balancing test
used in Scot Hudgens' is fully applicable and war-
rants a finding that Respondent's property rights
must yield to the Union's protected activity. Since the
striking employees had a right to publicize their labor
dispute inside Respondent's building, the General
Counsel argues that Respondent's efforts to remove
the individuals from the 46th floor constituted inter-
ference in violation of Section 8(a)( I) of the Act.
Respondent asserts that, as owner of the building.
it has the right to exclude certain activities from its
property. It also argues that its private property rights
must prevail over Section 7 rights because the strikers
have other available and effective means of communi-
cating with their intended audience. Respondent fur-
ther argues that it office building, which is leased to
predominantly professional and commercial tenants,
does not serve as the community business block and
is therefore distinguishable from the retail shopping
center in Hudgens.
We agree with the General Counsel that Respon-
dent violated Section 8(a)(l) by threatening to cause
the arrest of those handbilling and talking to custom-
ers in the 46th floor foyer of the bank building. It is
clear that the Union was engaged in primary, eco-
nomic strike activity against the primary employer.
This activity is protected by Section 7 of the Act.2
The question remains, however, whether this activity
is permissible on the 46th floor of Respondent's build-
ing. Since we find the factual setting to be analogous
with the situation in Hudgens, our task is to reconcile
the Section 7 rights of those employees engaged in
protected activity and the private property rights of
the Employer "with as little destruction of one as is
consistent with the maintenance of the other."3
The Union's intended audience consists of non-
striking Mirabeau employees and potential customers
of the restaurant. Respondent argues that the Union's
picketing on the public sidewalks surrounding the
bank building is an effective means of communica-
tion. It points to language in the stipulation of facts
that, because of the Union's activity on the sidewalks,
persons entering the building are "very likely to see
the picket signs advertising the labor dispute .... "
'230 NLRB 414 (1977).
2 Id at 416.
'N.LR.B. v. The Babcock Wilcox Comparn, 351 U.S. 105. 112 (1956)
Despite the fact that visitors to the bank building
may notice picket signs upon their arrival, we believe
that restricting the strike-related activity to the public
sidewalks would excessively hinder the Union's ef-
forts to communicate a meaningful message to its in-
tended audience. The Mirabeau is only one of numer-
ous firms and stores doing business in Respondent's
building. Customers of the Mirabeau become recog-
nizable as such only when they enter the restaurant.
In addition, a significant part of the Mirabeau's
lunchtime customers works inside the bank building.
These customers may enter the Mirabeau hours after
passing the pickets on the sidewalk. Other Mirabeau
customers may have been unaware of the restaurant's
existence upon entering the bank building to visit an-
other tenant, or did not originally plan to have lunch
or dinner in the building. We therefore find that the
Union's presence in the foyer on the 46th floor of
Respondent's building is essential to its ability to ef-
fectively communicate with its intended audience.
As for Respondent's assertion that its ownership
prerogatives include the right to exclude certain ac-
tivities from its building, 4 we note the fact that the
Union's activity on the 46th floor has been confined
to the foyer adjoining the Mirabeau. This area is open
to the public and is used by people wishing to patron-
ize the Mirabeau, visit the stock brokerage firm on
the 46th floor, or change elevators to visit tenants on
the 47th floor. Aside from the asserted trespass, the
individuals stationed on the 46th floor are not alleged
to have engaged in any misconduct.
For the reasons set forth above, we conclude that,
in these circumstances, Respondent's property rights
must yield to its employees' Section 7 rights. Since the
Union had the right to handbill and talk to Mirabeau
customers in the 46th floor foyer of Respondent's
building, Respondent violated Section 8(a) I) by
threatening to cause the arrest of those engaged in
such strike-related activity.
CONCL.USIONS OF LAW
1. Seattle-First National Bank is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Hotel, Motel, Restaurant Employees and Bar-
tenders Union Local 8, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
4 After the Board approved the stipulation of facts and the parties sub-
mitted briefs Respondent filed a motion to amend the stipulation to include
evidence concerning its no-solicitation policy. We hereby den) the motion on
the ground that, aside from other considerations, the policy advanced b)
Respondent applies only to bank propert) that is used for banking purposes,
and is therefore not relevant to the instant case.
X99
I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By threatening to cause the arrest of individuals
engaged in protected, economic strike activity in the
46th floor foyer of' the Seattle-First National Bank
Building, Respondent violated Section 8(a)(1) of the
Act.
4. The aforesaid unfair labor practice is an unfair
labor practice affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
TIIE REMEDY
Having found that Respondent has engaged in, and
is engaging in, an unfair labor practice. we shall order
it to cease and desist therefrom and take certain affir-
mative action designed to effectuate the policies of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent, Seattle-
First National Bank, Seattle, Washington, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening to cause the arrest of individuals
engaged in protected, economic strike activity in the
46th floor foyer of the Seattle-First National Bank
Building.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post in the foyer adjoining the Mirabeau res-
taurant in Seattle, Washington, copies of the attached
notice marked "Appendix."' Copies of said notice, on
forms provided by the Regional Director for Region
19, after being duly signed by Respondent's autho-
rized representatives, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to the
public are cutomarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices
are not altered, defaced, or covered by other material.
(b) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
APPENDIX
NOTICE
POSTED BY ORDER OF lTil
NATIONAl LABOR REI.ATIONS BOARI)
An Agency of the United States G.. ernment
WE WILL. Nor threaten to cause the arrest of
members of Hotel, Motel, Restaurant Employees
and Bartenders Union Local 8, AFL CIO. for
distributing handbills and talking to customers in
the foyer adjoining the Mirabeau restaurant on
the 46th floor of the Seattle-First National Bank
Building.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in Sec-
tion 7 of the National Labor Relations Act, as
amended.
SEATTLE-FIRsI NAIONAL BANK
In the event that this Order is enforced by a Judgment of a United States
Court of Appeals. the words in the notice reading "Posted by order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an order of the National
Labor Relations Board."
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