The Fairmont Hotel

National Labor Relations Board - Board Decisions

Nov 13, 1986

282 N.L.R.B. 139 (N.L.R.B. 1986)

FAIRMONT HOTEL .
Fairmont Hotel Company d/b/a The Fairmont Hotel
and Bakery Wagon Drivers and Salesmen,
Local 484, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers
of America . Case 20-CA-17443
13 November 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN, BABSON, AND STEPHENS
'On 21 June 1983 Administrative Law Judge
Michael D. Stevenson issued the attached decision.
The General Counsel filed exceptions and a brief in
support of the exceptions. The Respondent, Fair-
mont Hotel Company d/b/a The Fairmont Hotel
(Fairmont), filed cross-exceptions and a brief in
support of its cross-exceptions and in opposition to
the General Counsel's exceptions.
The Board has considered the decision and the
record in, light of the exceptions, the cross-excep-
tions, and briefs and has decided to affirm the
judge's rulings, findings, and conclusions' as modi-
fied, and to adopt the recommended Order.
I.
Fairmont operates a luxury hotel in San
Francisco. The Charging Party'Union had an area-
standards dispute with Bakers of Paris, a bakery
which is located in south San Francisco and that is
wholly unrelated to Fairmont except to the extent
that it supplies some of the baked products served
at the hotel. The employees of the hotel are repre-
sented by a variety of unions; the employees of the
bakery are represented by no union. The Union did
not claim to represent or seek to organize any of
the employees of the hotel or of the bakery. The
employees of the bakery perform no work at the
hotel and make all deliveries through the delivery
entrance at the side of the hotel.
On 28 September 1982 two officers of the Union
and an officer of another Teamsters local began
distributing handbills to guests of the hotel. The
handbills explained the Union's area-standards dis-
i In the third paragraph of sec III,B,1 of his decision , the ,fudge re-
ferred to the union agents involved in this case as "organizers." The
record shows that in carrying out the activity involved in this case, the
union agents were not pursuing an organizational objective and were not
acting as "organizers "
Fn. 12 of the judge's decision inadvertently misquoted the Board as
stating in its decision in Giant Food Markets, 241 NLRB 727, 728 (1979),
remanded 633 F.2d 18 (6th Cir 1980), that the Board's role in cases in-
volving picketing activity on private property is "to accommodate the
Section 7 rights of the pickets with the private property rights of the
pickets with the private property rights of the Employer." The Board's
decision actually stated that its role in such cases is "to accommodate the
Section 7 rights of the pickets with the private property rights of the
Employer "
The foregoing inadvertent errors do not affect our decision
282 NLRB No. 27
139
puce with Bakers of Paris and requested) members
of the public not to patronize the hotel until the
hotel stopped doing business with employers who
failed to meet area standards. The Union's execu-
tive officer acknowledged that the main purpose of
the handbilling was to advise the public about the
labor dispute that the Union was having with,
Bakers of Paris. The union officers carried out the
handbilling activity at the steps of the elaborate
main entrance at the front of the hotel.'- The pri-
vately owned steps are connected to a privately
owned, semicircular driveway, which in turn is
connected to the public sidewalk and street. The
steps are located about 20 feet from the sidewalk.
The majority of the hotel' s guests initially arrive at
the hotel and leave the hotel by automobile, using
the driveway. A large canopy over the driveway,
extending from the steps toward the sidewalk, pro-
tects the guests entering or leaving the hotel from
the elements. The hotel stations a doorman near
the steps, and the luggage of arriving guests is un-
loaded in this area.
After the handbilling had been in progress for 10
to 15 minutes, Fairmont's assistant chief of security
ordered the union officers to move the handbilling
activity off the hotel's property or face arrest. Fair-
mont ordered the union officers to move the hand-
billing activity away from the hotel's steps because
it believed that permitting such activity in the area
would exacerbate problems of congestion and theft
of luggage in the area, litter the hotel's formal
lobby, disturb the hotel' s guests, and disrupt the
hotel's decorum.
The union officers complied with the assistant se-
curity chief's order and moved to the public side-
walk in front of the hotel, where they continued
handbilling. In the Union's view, the handbilling at
that location was less successful, principally be-
cause most of the vehicles entering the hotel's
driveway did not stop at the sidewalk. After about
30 to 45 minutes the union officers left the area.
The judge found that permitting nonemployees
to distribute handbills on the hotel's outside proper-
ty would create potential security problems or
other hazardous conditions. He also found that the
Union's handbilling activity was entitled to less
protection under Section 7 of the Act than organi-
zational or recognitional activity. He therefore con-
cluded that the Union did not have a right to carry
on its handbilling activity on the premises of the
hotel. Additionally, although he found that the
Union had no alternative means by which it could
effectively communicate its message' to the public,
2 Photographs of the hotel' s main entrance, it Exhs 3 and 4, are re-
produced in the judge's decision (omitted from publication)
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he nevertheless adhered to his conclusion that, on
balance of all the factors, the Union did not have a
right to carry on handbilling on the hotel's proper-
ty. Accordingly, he concluded that Fairmont's ex-
clusion of the Union's officers from the hotel's
front entrance area did not violate Section 8(a)(1)
of the Act.
II.
We agree with the judge's conclusion, but only
for the following reasons. The issue of whether a
union has a right under Section 7 to carry on hand-
billing or related activity on the private property
of another has been addressed in a series of rulings
by the Supreme Court regarding conflicts between
Section 7 rights and property rights. In the seminal
case of NLRB v. Babcock & Wilcox Co.,3 the Court
addressed an employer's refusal to permit distribu-
tion of union literature by nonemployee-union or-
ganizers in the private parking lot of the employ-
er's industrial plant. Finding the employer's refusal
to be lawful, the Court held:
[A]n employer may validly post his property
against nonemployee distribution of union lit-
erature if reasonable efforts by the union
through other available channels of communi-
cation will enable it to reach the employees
with its message and if the employer's notice
or order does not discriminate against the
union by allowing other distribution.4
The Court elaborated:
Accommodation between [workers' organiza-
tional rights and employers' property rights]
must be obtained with as little destruction of
one as is consistent with the maintenance of
the other . . . . [W]hen the inaccessibility of
employees makes ineffective the reasonable at-
tempts by nonemployees 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 communi-
cation of information on the right to organize.
[I]f the location of a plant and the living quar-
ters of the employees place the employees
beyond the reach of reasonable union efforts
to communicate with them, the employer must
allow the union to approach his employees on
his property.5
The Court concluded that the employees in Bab-
cock were not inaccessible to the union. Forty per-
3 351 U S. 105 (1956).
4 Id. at 112.
5 Id at 112, 113.
cent of the employer 's 500 employees lived in a
town of 21 ,000 inhabitants , 1 mile from the plant,
and the rest ' lived within a 30-mile radius. The
Court noted that the union had talked to employ-
ees on the town streets and at their homes, had
mailed literature to them , and had talked with them
over the telephone . Accordingly , the Court con-
cluded that it was unnecessary for the employer's
property right to yield.
Subsequently, in Hudgens v. NLRB, 6 the Court
refined the analytical approach articulated in Bab-
cock.7 In Hudgens, the Court was presented with
striking warehouse employees who picketed one of
their employer 's retail stores in an enclosed shop-
ping mall . After first determining that the rights of
the pickets were dependent exclusively upon the
Act, and not the first amendment , the Court stated:
Under the Act, the task of the Board . . . is to
resolve conflicts between § 7 rights and pri-
vate property rights , "and to seek a proper ac-
commodation between the two." Central Hard-
ware Co. 'x NLRB, 407 U.S. at 543 . What is "a
proper accommodation" in any situation may
largely depend upon the content and the con-
text of the § 7 rights being asserted.
The locus of that accommodation . . . may
fall at differing points along the spectrum de-
pending on the nature and strength of the re-
spective § 7 rights and private property rights
asserted in any given context. In each generic
situation, the primary responsibility for making
this accommodation must rest with the Board
in the first instance. 8
The Court further noted that the context of the
Section 7 activity in Hudgens was different from
that in Babcock in several respects that might or
might not be relevant in striking the proper bal-
ance. These differences were that in Hudgens the
Section 7 activity involved economic,strike activity
rather than organizational activity, the Section 7
activity was carried on by employees, not outsid-
ers, and the property interests impinged on were
not those of the employer against which the Sec-
tion 7 activity was directed, but of another, the
shopping center owner. The Court remanded the
case to the Board so that it could be considered
6 424 U.S. 507 (1976)
7 Prior , to Hudgens, the Court in Central Hardware Co. v NLRB, 407
U S. 539 (1972), reiterated that the Babcock analysis applied in the con-
text of organizational activity in the parking lot of a single retail store.
8 424 U.S at 521, 522.
FAIRMONT HOTEL
under the "statutory criteria of the-National Labor
Relations Act alone."9
Finally, the Court had occasion to review Bab-
cock and its progeny in Sears, Roebuck & Co. v. San
Diego County Council of Carpenters,) ° a case con-
cerning Federal preemption of a state court injunc-
tion action. The Court observed that in the context
of trespassory, organizational solicitation by non-
employees, an employer's right under Babcock to
bar union organizers from its property remains the
general rule; to gain access, a union bears the
"heavy" burden of showing that "no other reasona-
ble means of communicating its organizational mes-
sage to the employees exists or that the employer's
access rules discriminate against union solicita-
tion."11 Citing Hudgens, the Court further noted:
Babcock extends to § 7 rights other than orga-
nizational activity, though the "locus" of the
"accommodation of § 7 rights and the private
property rights., .. may fall at different points
Along the spectrum depending on the nature
and strength of the respective § 7 rights and
private property rights asserted in any given
context." 12
The Court's decisions in Babcock, Hudgens, and
Sears provide firm guidance for the resolution of
conflicting claims of property rights and Section 7
rights. Application of this guidance at times has
proven to be problematic, however. Giant Food
Markets, 241 NLRB 727 (1979), is illustrative ' of
these problems. In that case, Giant Food and
Kresge operated retail stores in subdivided portions
of a ' privately owned building separated from the
street by a private parking lot for the use of the
customers of the two businesses. The property was
owned by a third party: A union engaged in area-
standards picketing and handbilling directed at
Giant. The pickets, who were not employees of
Giant, first engaged in picketing in front of the
store, and then, after Giant, Kresge, and the prop-
erty owner had obtained a temporary restraining
order, moved to a grassy area just outside the
property.
Giant Food acknowledged the Court's admoni-
tion in Hudgens that the "locus" of accommodation
of Section 7 and property rights may fall at differ-
ent points along the spectrum depending on their
respective nature and strengths. The Board consid-
9 Id. at 523 Significantly, in discussing these "statutory criteria," the
Court did not address the availability to the union of alternative means of
communication.
1O 436 U.S. 180 (1978)
1' Id. at 205 (fn. omitted).
12 Id. at 204, quoting Hudgens v. NLRB, supra. The Court concluded
that Sears' state court injunction action against trespassory picketing was
not preempted by the National Labor Relations Act, and the Court re-
manded the case for further proceedings
141
Bred the nature of the employer's property right,
observing the extent to which ingress, egress, or
the general business of the shopping center might
be interfered with by the pickets, particularly inso-
far as the neutral, Kresge, might be affected. How-
ever, in assessing the strength of the Section 7 right
involved, the analysis focused primarily on the
finding that Giant was the targeted employer
(though not an employer with employees that the
union represented or sought to represent) and, as
such, the location of Giant's business was "where
the union can reasonably expect its picketing and
handbilling to have the most impact." 13 In this
connection the Board concluded that because the
union's intended audience was the not-easily-identi-
fiable group consisting of Giant's customers, "other
means of communication cannot be considered 'rea-
sonable' in relation to their possible effective-
ness."14 The Board noted that requiring the union
to picket and handbill off the' private property
"would too greatly dilute the Union's message for
it to be meaningful." 1 s
On the principal ground that the intended audi-
ence in Giant was less easily identifiable, the Board
distinguished Babcock & Wilcox, which involved
organizing activity. Thus, while acknowledging
that the relative strength of Section 7 rights is sig-
nificant under Hudgens, Giant's deferral, in the final
analysis, to a test of available "reasonable" alterna-
tives suggests that a union engaging in area-stand-
ards activity would inevitably find it easier to es-
tablish its right to access than a union engaged in
organizing activity. In our view, this is not a anode
of analysis contemplated by the Supreme Court.16
In attempting to resolve some of the analytical
questions raised by Giant Food, we note that the
mandate in Babcock "to accommodate" each right
with "as little destruction of one as is consistent
with the maintenance of the other" implicitly rec-
ognizes, that the claim of a party to one or the
other of these rights will have varying degrees of
strength depending on the facts of the particular
case. For example, the owner of, a large shopping
mall who allows the general public to utilize his
property without substantial limitation may well
have a heavy burden to bear in seeking selectively
to exclude pickets who are engaged in an economic
strike against their employer who is a tenant of the
mall. In such a case, the strength of the mall
owner's claim that private property rights are
being violated may be ' undercut by the fact that
1s Giant Food Markets, supra, 241 NLRB at 728.
14 Id . at 729.
15 Id. at 729.
16 We do not pass here on the conclusion reached by the Board in
Giant Food
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
heretofore virtually no one had been excluded. On
the other hand, a single store surrounded by its
own parking lot provided exclusively for the con-
venience of customers will have a significantly
more compelling property right claim. Factors that
may affect the relative strength or weakness of a
property right claimed by an employer or other
property owner include, but are not limited to, the
use to which the property in question is put; the re-
strictions, if any, that are imposed on public access
to, , the property or to the facility located on the
property; and the size and location of the private
facility.
Similarly, in this context, not every Section 7
right that is asserted will be equally compelling.
The Supreme Court recognized that the relative
strength,of the claims to property rights and Sec-
tion 7 rights would vary in each case when it said
that the accommodation of the two "may fall at
different points along the spectrum . ..' in any
given context."14 Thus, for example, in reaching
an accommodation, organizational rights and the
right to engage in primary economic activity at the
situs of a dispute may be viewed as more compel-
ling than handbilling and other informational activ-
ity at locations other than the primary situs. Fac-
tors that may affect the relative strength or weak-
ness of a claim of Section 7 rights include, but are
not limited to, the nature of the right asserted, the
purpose for which it is being asserted, the employ-
er that is the target of the activity, the situs of the
activity, the relationship of the situs to the target,
the intended audience of the activity, and, possibly,
the manner in which the right is being asserted.
We believe that in cases such as the instant one,
therefore, it is the Board's task first to weigh the
relative strength of each party's claim. If the prop-
erty owner's claim is a strong one, while the Sec-
tion 7 right at issue is clearly a less compelling one,
the property right will prevail. If the property
claim' is a tenuous one, and the Section 7 right is
clearly more compelling, then the Section 7 right
will prevail. Only in those cases where the respec-
tive claims are'relatively equal in strength will ef-
fective alternative means of communication become
determinative.' s Indeed, if the Board were to focus
primarily on the availability of alternative means,
there is a' substantial risk that relatively strong
claims of private property rights would be required
17 Sears, supra, 436 U S at 204; Hudgens, supra, 424 U.S at 522
is The Court 's analysis in Babcock is consistent with this approach. In
that case the property right claimed and the Sec 7 right claimed were
each paramount in its own sphere Because both rights claimed were
paramount, the Court looked to see if there were alternative means avail-
able to the union which would allow accommodation of the property
right. Because there were such alternative means, the private property
right could be accommodated "consistent with the maintenance" of the
union's right to organize the employer 's employees.
to yield to relatively weak claims of Section 7
rights. Similarly, it is fully conceivable that utiliza-
tion of alternative means as the inevitable litmus
test would result in property rights yielding more
frequently to weaker Section 7 rights such as area-
standards activity than to paramount Section 7
rights such as organizing because of the latter's
more easily identifiable audience. Such a result is
clearly not envisioned by the Court or required by
the Act, and has been called into question by at
least one court of appeals.19
Applying the foregoing analysis to the facts here,
we are of the view that the property rights asserted
by Fairmont are more compelling than the Section
7 rights asserted by the Union. In evaluating Fair-
mont's property right claim, we note first that the
property in question is a large luxury hotel and that
the location at which the Union attempted to dis-
tribute handbills was the privately owned area in
front of the main hotel entrance, beyond which is
the hotel's formal lobby. Fairmont maintains an at-
mosphere of formality and decorum in these loca-
tions and this area is generally open only to the pa-
trons of the hotel. All employees and suppliers are
required to use other designated entrances. Fur-
ther, although the hotel is large and, therefore, has
a substantial clientele which condition dilutes to
some degree the "privateness" of the, entrance area,
this is more than offset by other factors. For exam-
ple, while the hotel has previously been the object
of picketing, there is no evidence that Fairmont
previously has permitted anyone to handbill or
picket on its private property. Moreover, Fairmont
has a valid interest in minimizing congestion, litter,
and the possibility of theft of luggage in 'the private
area in front of the hotel 's main entrance . The pres-
ence of outsiders distributing handbills in this area
is inconsistent with these interests and would tend
to disturb the hotel's guests entering or leaving
through this entrance and to disrupt the hotel's de-
corum. Inasmuch as innkeepers are frequently held
to a higher standard of care for their guests than
many other employers offering public facilities,
Fairmont has a valid interest in limiting its tort li-
ability. In sum, in excluding persons engaged in
handbilling from the privately,, owned area connect-
ing the hotel's front entrance with the private
driveway that serves that entrance, Fairmont was
asserting a substantial private property interest in
limiting the use to which its property was put.
The Section 7 right asserted by the Union here,
on the other hand, is of more limited significance.
As we apply the guidance of Hudgens to examine
first the "nature" of the Section 7 interest, we note
19 See Giant Food Markets Y. NLRB, 633 F.2d 18, 24 (6th Cir. 1980)
FAIRMONT HOTEL 143
that area-standards activity has clearly been found
a protected exercise of Section 7 rights.20 Area-
standards activity is itself a form of consumer pub-
licity which frequently-and in this case-is direct-
ed at a narrow and highly inaccessible segment of
the consuming public. This factor is itself of some
significance in assessing the Union's Section 7
claim. On the other hand, the Supreme Court has
observed that, although area-standards activity may
incidentally have the effect of improving the wages
of the employees of the targeted employer, it has
"no ... vital link to the employees located on the
[targeted] employer's property," but is protected
"essentially because a union has a legitimate inter-
est in protecting the wage standards of its members
who are employed by competitors of the [targeted]
employer."21
Turning to the "strength" of the Section 7 inter-
est in this case, the observation that area-standards
activity has "no . . . vital link to the employees lo-
cated on the [targeted] employer's property" is par-
ticularly applicable because the Union's activity
was significantly removed not only from employ-
ees represented by the Union but also from the tar-
geted employer's employees. The Union's activity
was not carried out at the property of Bakers of
Paris-with which the Union had an area-standards
dispute-but ' at the property of Fairmont, ' an em-
ployer which simply received supplies from Bakers
of Paris.22 Moreover, the hotel here is distin-
guished from the respondent in Hudgens, a shop-
ping center owner 'who also was a third party to
the labor dispute, because Fairmont apparently has
no economic interest in the business success of the
employer with which the Union has its area-stand-
ards dispute. In short, the Union's activity here was
carried out at the property of an employer with
which the Union had no primary dispute, not even
an area-standards one, and the employees of which
stood to reap no benefit, not even an incidental
one, if the Union achieved its ultimate 'objective of
improved wages for the employees of Bakers of
Paris.
Under these circumstances, the Section 7 right
being exercised by the Union in its handbilling ac-
tivity at the hotel was not at the "core of the pur-
pose for which the NLRA was enacted." 23 Be-
20 Sears,, Roebuck & Co., supra, 436 U S. at 206 In. 42; see also Grant
Food Markets, supra at 728, affirmed on this point and remanded on other
grounds 633 F.2d 18, 23 (6th Cir. 1980).
21 Sears. Roebuck & Co, supra 436 US. at 206 fn. 42; see also Giant
Food Markets, supra at 728
22 Compare Giant Food Markets, supra at 728. We note in passing that
the record', does not indicate that Fairmont was the only customer of
Bakers of Paris, or even a principal one.
as Sears,lsupra, 436 U.S. at 206 fn. 42
cause in our view the property rights asserted by
Fairmont far outweigh the Section 7 rights asserted
by the Union, we conclude that Fairmont did not
violate the Act when it barred the Union' s agents
from using the privately owned area adjacent to
the main entrance of the hotel as a location from
which to distribute handbills in support of the
Union's area-standards dispute with Bakers of
Paris. Furthermore, because the rights asserted by
Fairmont and the Union are not relatively equal,
we deem it unnecessary to consider whether rea-
sonable, alternative means by which the Union
could have communicated its message were avail-
able.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
MEMBER STEPHENS, concurring.
I am not ready to embrace an access rights test
under which we would be barred from' inquiring
into the availability of reasonably effective alterna-
tive means of communication with the target audi-
ence unless we found that the "property rights" at
issue were of relatively equal strength with Section
7 rights implicated in the activity on the affected
property. It is conceivable to me that we may en-
counter cases in which we will not find the two
categories of rights' exactly in equipoise but in
which we still might find it desirable to factor into
the "accommodation" analysis the existence vel
non of reasonable means of communicating with
the target audience. Insofar as the majority opin-
ion's list of factors "that may affect the relative
strength or weakness of a claim of Section 7
rights" means that the "alternative means" inquiry
is not necessarily barred in particular classes of
cases, I agree with the. majority's analysis.'
1 In NLRB Y _Babcock &., Wlcox, 351 U.S. 105 (1956), the Supreme
Court laid great stress on the factor of alternative means. The Court reaf-
firmed Babcock & Wilcox in Hudgens v. NLRB, 424 U.S. 507 (1976), and
although Justice Stewart's opinion for the Court does not explicitly refer
to that factor, it is implicit in his citation of United Steelworkers v NLRB
(Carrier Corp.), 376 U.S 492, 499 (1964), that the Court regarded avail-
ability of alternative means as a factor in assessing the strength of Sec. 7
rights in the balance against property rights. The Court cited Carrier for
the proposition that the context, of Sec 7 activity may affect the balance
between the activity and affected property rights. In Carrier, striking em-
ployees of Carrier picketed on a property that was adjacent to Carrier's
premises and that was owned by a railroad that was a neutral with regard
to the labor dispute. On the page cited by Justice Stewart in Hudgens, the
Court stated that it was an important right of primary picketers to be
able to , publicize their dispute to'neutral suppliers and that the location of
such picketing on the property of someone other, than the primary em-
ployer was an important, but not a decisive, factor under the circum-
stances there. Carrier Corp., 376 U.S. at 499. Adopting the reasoning of
the court below, the Court then noted that one reason that the Carrier
Continued
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In particular , I concur in the result in this case
because, like the judge, I would find that even if
the Union's inability to reach patrons of the Fair-
mont is taken into account, the property rights at
issue here still outweigh the Section 7 rights.
I find it useful in this connection to -distinguish
between the basic Section 7 right to protest the
wages and benefits of the primary employer,
Bakers of Paris (the bakery), and the subsidiary
right to carry out that protest by means of pressure
on neutrals who sell the products of the bakery.2
Although the judge concluded that the Union had
no reasonably effective alternative means of com-
municating with guests of the Fairmont, he made no
findings concerning whether the Union had reason-
ably effective alternative means of reaching a sub-
stantial segment of the public that patronizes facili-
ties that carry the bakery's products and therefore
had an effective means of pressuring the primary
employer, who is allegedly undermining the area
standards.
The record does not show that the Fairmont was
the only establishment carrying the bakery's prod-
ucts or even that it was a principal customer of the
bakery., Thus, for all the record shows, there may
be a great number of locations where the bakery's
products are sold and where the Union may hand-
bill potential patrons without entering private prop-
erty at all. Indeed, the record shows that the Union
had handbilled at another neutral situs, the St.
Francis Hotel, in connection with this dispute and
that at least some of that handbilling was carried
out on the public sidewalk. In the absence of a
showing that the Union would not be able substan-
tially to carry out its area-standards protest
through handbilling on public property near the
premises of other bakery customers, I would not
find that the Union's Section 7 rights outweigh the
Fairmont's property rights, which I agree with my
colleagues are especially compelling here.3
strikers could properly picket on the railroad's property was that "the
fence surrounding the railroad's right of way was a continuation of the
fence surrounding the Carrier plant," and "there was no other place where
the union could have brought home to the railroad workers servicing
Carrier its dispute' with Carrier." 376 U.S at 499-500 (emphasis added),
quoting 311 F.2d 135, 154 (2d Cit. 1963)
8 The extent of the right to pressure neutrals is defined by the means
used (picketing as opposed to nonpicketing publicity), the scope of the
message (solicitation not to patronize a neutral establishment as opposed
to solicitation not to purchase boycotted products sold by the neutral),
and the relationship of the neutral to the primary employer. See generally
DeBartolo Corp. v. NLRB, 463 U S, 147 (1983); NLRB v. Retail Clerks
Local 1001 (Safeco), 447 U.S. 607 (1980) No one contends that, apart
from the controversy over location, the Union was not within its rights
in handbilling the Fairmont as a distributor of the bakery's products
a There were less serious infringements on property rights in Montgom-
ery Ward & Co, 265 NLRB 60 (1982), and Seattle-First National Bank,
243 NLRB 898 (1979), remanded 651• F 2d 1272, 1277 (9th Or. 1980), on
remand 258 NLRB 1222 (1981) In Montgomery Ward, the area near the
store entrance at which the handbillers sought to stand did not present
the same security considerations and need to minimize congestion as did
the area immediately outside the Farimont's formal entrance, where
guests' luggage was frequently deposited. Indeed, the judge in Montgom-
ery Ward had found that traffic hazards and congestion were likely to
occur only when the handbillers were relegated to public property at the
driveway entrances to the parking lot (265 NLRB at 68), and, as Chair-
man van de Water noted, the store had tolerated solicitors for charities
in the very same area near the store entrance where the handbillers
wished to stand (id at 61 fn 7, 69) In Seattle-First National Bank, there
was similarly no indication that a small number of leafletters or picketers
in the 46th floor foyer, outside the restaurant owned by the primary em-
ployer, might present any special security or congestion problems. There
was also an especially compelling argument in that case that the union
had no effective alternative means to reach its sole intended audience-
nonstriking employees and patrons of the restaurant it was striking. From
the vantage point of the public sidewalk outside the building there was
no way of differentiating the restaurant patrons from the general public
243 NLRB at 899; 651 F.2d at 1275-1276
Vicky Chin, Esq., for the General Counsel.
Joseph E. Herman, Esq. (Seyfarth, Shaw, Fairweather &
Geraldson), of Los Angeles, California, for the Re-
spondent.
Duane Beeson, Esq., of San Francisco , California, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge.
This case was tried before me in San Francisco, Califor-
nia, on April 11, 1983,1 pursuant to a complaint issued
by the Regional Director for Region 20 on November
29, and that is based on a charge filed by Bakery Wagon
Drivers and Salesmen Local 484, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Union or Charging Party) on Octo-
ber 4. The complaint alleges that Fairmont Hotel Com-
pany d/b/a, The Fairmont Hotel (Respondent) has en-
gaged in certain violations of Section 8(a)(1) of the Na-
tional Labor. Relations Act.
Issue
The issue is whether Respondent violated Section
8(a)(1) of the Act by refusing to permit representatives
of the Union to remain on Respondent's outside private
property near the main entrance to its business, where
the union representatives were distributing to Respond-
ent's customers and guests handbills concerning an al-
leged labor dispute between Respondent and one of its
suppliers.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and Respondent. a
i All dates refer to 1982 unless otherwise indicated.
2 On May 31, 1983, the California Hotel & Motel Association (Amicus)
filed a motion asking, "For Leave to File Amicus Curiae Brief" A copy
of the proposed brief was also filed with the motion Ten days later, the
General Counsel filed written objections to the brief of the amicus which
I overrule The General Counsel also filed a motion to strike portions of
the amicus curiae brief. I also deny this motion, and grant the motion of
the amicus curiae to file its brief If any portions of the brief contain im-
proper representations, I will disregard those portions
FAIRMONT HOTEL 145
On June 10, 1983, Respondent submitted a 3-1/2 page
letter commenting on portions of the General Counsel's
brief. This was followed 3 days later by the General
Counsel's "Motion to Strike Respondent's Post-Brief
Letter to the Administrative Law Judge." Citing Section
102.42 of the Board's Rules and Regulations, the General
Counsel contends that Respondent's letter is tantamount
to a reply brief, which is not permissible under Section
102.42. I agree with the characterization of Respondent's
letter. Although there is authority giving administrative
law judges discretion to admit a party's reply brief, e.g.,
Allis-Chalmers Corp., 234 NLRB 350, 351 fn. 4 (1978), 1
grant the motion of the General Counsel to strike the
document from the record. It should be noted that at the
time I received Respondent's letter, I had already pre-
pared a first draft of my opinion. No changes were made
as a result of Respondent's letter. Accordingly, the simi-
larity between certain portions of Respondent's letter and
certain portions of my opinion are strictly coincidental.
On the entire record of the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent admits that it is a California corporation
that operates a hotel and restaurant located in San Fran-
cisco, California. It further admits that during the past
year, in the course and conduct of its business, that its
gross volume exceeded $500,000, and that annually it
purchases goods and materials valued in excess of $5000
from sources outside the State of California. Accordingly
it admits, and I find, that it is an employer engaged in
commerce and in a business affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Respondent admits , and I find, that Bakery Wagon
Drivers and Salesmen, Local 484 , International Brother-
hood of Teamsters, Chauffeurs , Warehousemen and
Helpers of America is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts3
Respondent operates a large and lavish hotel located
in San Francisco, California. It employs approximately
800 employees, and maintains collective-bargaining rela-
tionships with nine separate unions. The Charging Party
Union is not one of the nine unions. Indeed, the parties
stipulated that the Charging Party does not represent nor
claim to represent any employees who work for Re-
spondent.
In order to operate its establishment, Respondent re-
ceives products from over 100 different suppliers. One of
8 The motion of the General Counsel to file duplicates of A. Exh 1, 2,
and 3 as part of the official duplicate file is granted The General Counsel
is directed to physically attach the duplicates to the official duplicate ex-
hibit file, as she has offered to do in her letter to me of April 21, 1982.
these suppliers is Bakers of Paris, an employer located in
South San Francisco, California. This employer is a non-
union business, which the Charging Party is not attempt-
ing to organize . However, the Charging Party claims
that Bakers of Paris operates under substandard working
conditions, and for this reason has picketed Bakers of
Paris' place of business on one or more occasions. Bakers
of Paris does no work on Respondent's premises, but
makes regular deliveries of its bakery products to Re-
spondent's premises. These deliveries are not made at
Respondent's main entrance where representatives of the
Union attempted to handbill. Other' bakery products are
baked on Respondent's premises by Respondent's em-
ployees who are fully unionized.
Respondent is located in an affluent section of the city
called Nob Hill and is bordered by California Street on
the south, Powell Street on the east, Mason Street on the
west, and Sacramento Street on the north. The parties
have agreed to certain exhibits that help in understanding
the specific location of the dispute in this case.
For example, Joint Exhibit 2 is a color photograph
looking toward the hotel and reflecting the corner of
California and Mason Streets. This exhibit reflects a long
view of the hotel's main entrance and shows the cab
stand near where the Union attempted to distribute hand-
bills. [Jt. Exh. 2 is omitted from publication.]
Another color Photograph reflects a view of the main
entrance from a much closer perspective. [Jt. Exh. 3 is
omitted from publication.]
This exhibit shows the driveway leading from Mason
Street, which is used by cars and taxi cabs servicing Re-
spondent's customers. Most guests arriving at the hotel
to check in arrive by vehicle. By comparison, pedestrian
traffic into and out of the hotel is substantially less, al-
though there is great 'variation depending on time of day
and what events are occurring at the hotel.
The final photographic exhibit shows a closeup view
of the portico area where union representatives were
handbilling on the day in question. [Jt. Exh. 4 is omitted
from publication.]
"Portico" means the covered area leading ; from the
front steps to the front door of The Fairmont, The front
door is an automatic sliding-door type. The width of the
front steps is approximately 12 feet and the distance be-
tween the steps and the front doors is approximately 15
feet. Between the driveway and the sidewalk is a barrier
that holds plants and flowers. The distance from the
front steps to the barrier is approximately 20 feet.
Hotel employees use a different entrance located on
Sacramento Street. Three other entrances, in addition to
that described above, are for hotel customers. Two of
these do not lead to the lobby and one does. None of
them have a driveway.
Having attempted to describe the locus of this dispute,
I turn next to describe the actions of the parties. The
story begins about 3 weeks prior to September 28, the
day in question . Joseph Ault, executive officer of Local
484, called Herman Wiener, Respondent's general man-
ager, and informed Wiener of the Union's dispute with
the Bakers of Paris. More specifically, Ault told Wiener
that the wages and benefits paid by the Bakers of Paris
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were substandard, and that the Union might be handbill-
ing at the hotel in the future.
On September 28, Ault, together with Lloyd Wilkin-
son, assistant business agent of Local 484, and Robert
Duncan, the assistant business agent of Local 432 of the
Bakery Wagon Drivers & Salesmen Union, arrived at
Respondent about 10 a.m. Each of the men carried with
them handbills, which read as follows:
TO THE PUBLIC
PLEASE DO NOT PATRONIZE
THIS RESTAURANT-HOTEL
We are asking your cooperation to help us in a
labor dispute. This restaurant-hotel uses bakery
products produced and delivered by a non-union
bakery, called Bakers of Paris. Its products are man-
ufactured and delivered under non-union conditions.
We need the support of our community to get the
message across to all employers that the public will
not accept substandard operations in San Francisco.
You can help us by telling the manager of this res-
taurant-hotel that you will patronize him again
when he does business with fair employers who pay
union wages and conditions.
Thank you,
TEAMSTERS LOCAL 484
The three union representatives positioned themselves in
and around the steps leading into the main entrance. At
no time did they enter the hotel building. As various per-
sons entered or exited the hotel, the union representa-
tives tendered a handbill to them and said, "good morn-
ing," or "would you like one of these." After 10 to 15
minutes of handbilling had occurred, Salvatore Turturici,
a witness at hearing, exited the hotel. An employee of
Respondent for 14 years, Turturici was at the time assist-
ant chief of security, with responsibilities to protect the
hotel's customers, guests, and hotel property. The parties
agreed that Turturici was Respondent's agent when he
addressed the union representatives and ordered them to
move off Respondent's steps and its other property or be
subject to arrest. Ault and the others complied with this
order and went to the sidewalk shown on Joint Exhibit
3. There they attempted to continue handbilling but, ac-
cording to Ault, the attempt was ineffective because
most of the vehicles entering the hotel driveway did not
stop at the sidewalk. After about 30 to 45 minutes, Ault
and the others stopped handbilling and left the area.
Subsequently, union representatives returned to Re-
spondent on several occasions in March and early April
1983 to distribute handbills. The number of union repre-
sentatives and the times they appeared varies. They were
permitted to handbill in the same general area on Re-
spondent's property, however, where they had been on
September 28. Respondent tolerated this activity due to
the pending litigation before the Board. Accordingly,
these later visits to Respondent's premises do not affect
the legal issue as framed by the parties on September 28.
I turn now to discuss and decide this issue.
B. Analysis and Conclusions
1. Nonemployee union representatives' right of
access to outside private property for the purpose
of handbilling public
The balancing of a union's Section 7 rights against an
employer's rights to restrict use of his private property
emanates from the case of NLRB v. Babcock & Wilcox
Co., 351 U.S. 105 (1965). There, the Court stated that
"Accommodation between the two [rights] must be ob-
tained with as little destruction of one as is consistent
with the maintenance of the other. (351 U.S.,at 112.)
The difficulty with using Babcock & Wilcox as a begin-
ning for the analysis in the present case is reflected in the
later case of Central Hardware Co. v. NLRB, 407 U.S.
539, 544-545 (1972). There, the Court stated that "the
principle of accommodation [between Section 7 rights
and private property rights]' is limited to labor organiza-
tion campaigns, and the `yielding' of property rights it
may require is both temporary and minimal." (407 U.S.
at 545.)
The instant case does not involve a union organiza-
tional campaign. Indeed,_ Respondent's employees in
large measure are already represented by other unions-
nine of them. Yet, the Union's efforts to reach the public
with its message on handbills may be a protected activity
comparable but not equivalent to a union's right to orga-
nize employees. No case appears to be directly on point
containing the unusual mix of facts and circumstances
found here.4 In the absence of clear precedent, I assume
without finding that in order to decide the issue present-
ed in this case, a balancing of Section 7 interests against
private property rights is required. As will be reflected
below, however, I have modified and shortened the tra-
ditional balancing test so to reflect the peculiar facts and
circumstances of the instant case.
Respondent's hotel is open to members of the public
who enter with a certain purpose, that is, to be custom-
ers or guests.5 The union organizers clearly were not
within this class of person. The General Counsel cites
the case of Montgomery Ward & Co., 265 NLRB 60
(1982), for the proposition that the union organizers were
members of the general public invited onto the premises
4 Respondent cites two advice memoranda from 1979 as supporting his
position. Apparently, no complaints were issued in those cases. In NLRB
v. Sears, Roebuck & Co., 421 U.S. 132, 155-159 (1975), the Supreme Court
held, inter alia, that advice memoranda concluding that no complaint
should be filed are disclosable under the Freedom of Information Act.
Not considered in Sears Roebuck was the question of what precedential
value, if any,,such memoranda have in an unfair labor practice proceed-
ing. In light of the result reached below, it is unnecessary to determine
that question here; similarly, I need not determine whether the two
advice memoranda cited by Respondent are factually comparable to the
instant case.
5 There is no claim here that Respondent's private property rights
were so diluted that its property effectively became public property ele-
vated to public use Accordingly, the 1st and 14th amendments are not
implicated in this case. Compare Food & Commercial Workers v. Logan
Valley Plaza, 391 U S. 308 (1981), and, as distinguished in Central Hard-
ware Co. v. NLRB, supra, 407 U.S. at 546-548.
FAIRMONT HOTEL
as potential customers .6 The steps leading into Respond-
ent's hotel could be compared to the privately owned
parking lot in the case of S. E. Nichols, 200 NLRB 1130
(1972). There, the union representatives distributed its
handbills both to employees and members of the public.
There was no evidence that the union was engaging in a
union-organizing or recognitional campaign . According-
ly, the Board affirmed the dismissal of the case.?
In agreement with the General Counsel (G.C. Br. 18),
I find here that the Union's representatives were peace-
ful, courteous to members of the public, and to Respond-
ent's agents. I further find that the Union did not create
actual security or other problems. However, I find that
permitting nonemployees to distribute handbills on Re-
spondent's outside property would create potential secu-
rity or other hazardous conditions. When vehicles drive
up to deposit customers or guests, there is usually a
doorman to open and close car doors, to assist persons
into and out of cars, and up or down the stairs when this
is necessary . In addition, one or more bellmen are usual-
ly up the stairs near the sliding doors. On at least one
occasion, other than when the Union was distributing
handbills, luggage was stolen from this area. It need not
be determined here whether Respondent, would be liable
for torts committed by nonemployee union representa-
tives on Respondent 's premises pursuant to Board order,
to handbill the public about a labor dispute between the
Union and one of Respondent's suppliers. Yet, even mere
exposure to attorney's fees and other costs of defending
such claims is a factor weighing against union access in
this case.
Finally, the General Counsel contends that no change
in hotel procedures was required by the presence of the
Union on occasions subsequent to September 28. Because
Respondent elected to permit the handbilling out of re-
spect for the Board and its processes, however, I draw
no inferences from any of the subsequent union activity
nor Respondents' acquiescence.
2. The Union 's purpose in handbilling
The handbill distributed by Ault and the others has
been reproduced above. At the hearing, Ault testified
that the Union 's objectives in distributing the handbills
were to persuade the hotel 's customers to cease doing
business with it , and (on redirect examination ) primarily
to advise the public about the labor dispute with the
Bakers of Paris . A reading of the handbill would seem to
indicate that Ault's alleged primary purpose was really
his secondary purpose . That is, the Union desired pri-
6 At p. 22, fn. 17 of its brief, Respondent states, "The fact that the
Fairmont 's lobby is open to the general public for certain purposes does
not make an order of access appropriate " Here there was no union activ-
ity, in the hotel lobby Some handbills were carried into the lobby by
members of the public and deposited in trash containers One was found
on the floor . If Respondent substitutes for "lobby," its steps and portico
area, I would agree with and accept the argument because property does
not lose its private character merely because the public is generally invit-
ed to use it for a designated purpose. Lloyd Corp v. Tanner, 407 U S 551
(1972)
7 The handbills stated that in a prior case the Board had found re-
spondent guilty of violating Federal law and had ordered it to stop the
unlawful activity and reinstate two employees who had been unlawfully
fired.
147
manly that the hotel 's customers cease doing business
with it while the hotel dealt with the Bakers of Paris.
The General Counsel contends (G.C. Br. 14) that the
publicity proviso to Section 8 (b)(4) permits the activity
in question here . The provision expressly shelters from
the prescription of Section 8(b)(4),
[P]ublicity, other than picketing , for the purpose of
truthfully advising the public , including consumers
and members of a labor organization , that a product
or products are produced by an employer with
whom the labor organization has a primary dispute
and are distributed by another employer ... .
I assume for purposes of this case that the Union has a
primary dispute with the Bakers of Paris and assume fur-
ther that the handbill in this case truthfully advised the
public of that labor dispute.8
To the extent that the publicity proviso quoted above
creates Section 7 rights , the rights are entitled to lessor
protection than those for organizing ' or recognition. That
Section 7 rights are not all of equal stature has been rec-
ognized by the Board in a recent case. In Montgomery
Ward & Co., 265 NLRB 60 ( 1982), the Board affirmed
the ruling of an administrative law judge that the union
had a right to handbill on the premises of Respondent's
retail store although the union had a primary dispute
with another employer , because the record showed an
absence of effective alternative means of reaching the
public. The Board also held,
... in reaching these conclusions , we find it unnec-
essary to consider , and we do not, adopt , the Ad-
ministrative Law Judge's extensive analysis and his
resultant findings that consumer -directed boycott
picketing, area standards picketing , organizational
activity, and primary economic activity are Section
7 rights of equal nature and strength.
The Supreme Court has also cautioned , "the locus of
that accommodation, [between Section 7 and private
property rights] however, may fall at differing points
along the spectrum depending on the nature and strength
of the respective Section 7 rights and private property
rights asserted in any given context ."9 In another case,
the Supreme Court has continued its theme that Section
7 rights are not all of equal weight . The Court opined:
Several factors make the argument for protection
of trespassory area-standards picketing as a cate-
gory of conduct less compelling than that for tre-
spassory organizational solicitation. 10
Thus, based on the inferences that flow from the handbill
and the Union's announced objectives for distributing the
8 Handbilling is clearly an activity meant to be protected within the
publicity proviso. Teamsters Local 537 (Lohmar Sales), 132 NLRl3 901
(1961). The deterrence of Respondent's customers, if any, as a result of
the Union's handbilling in this case will have to be tolerated because of
the (Congress') concern for freedom of speech R. Gorman, Labor Law
at 261 (1977).
9 Hudgens a NLRB, 424 U S. 597, 522 (1976).
10 Sears, Roebuck & Co. v. Carpenters, 436 U.S 180, 206 fn. 42 (1978)
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
handbill-all protected under the publicity provisions, I
find that the Union has no right to handbill on Respond-
ent's premises."
This conclusion is not affected by the case of Mont-
gomery Ward & Co., supra, 265 NLRB 60. To say that
the General Counsel views this case as important would
surely understate the fact. I count 10 citations of the case
between pages 15 and 21 of the General Counsel's brief.
Unfortunately, Respondent mentions the case not at all.
Perhaps the most telling citation of Montgomery Ward &
Co., occurs at 265 NLRB 21 fn. 4, where the General
Counsel candidly recognizes that Montgomery Ward &
Co., could be distinguished from the instant case because
the primary dispute there concerned economic strike ac-
tivity as opposed to the (assumed) area standards dispute
between the Bakers of Paris and the Union. The General
Counsel goes on to cite Giant Food Markets, 241 NLRB
727, 728 (1979), enf. denied, 633 F.2d 18 (6th Cir. 1980),
for the proposition that area standards picketing is a pro-
tected Section 7 right similar to organizing and economic
strike activity. As noted above, however, the Board in
Montgomery Ward & Co., has left this an open ques-
tion. 12
The General Counsel inadvertently forgot to add that
in Montgomery Ward & Co., the persons attempting to
handbill on Respondent's property were the striking em-
ployees of the primary employer. These strikers were ex-
ercising a right to follow the struck product pursuant to
NLRB v. Fruit & Vegetable Packers Local 760 (Tree
Fruits), 377 U.S. 58 (1964). The difference between Tree
Fruits when the Union desired patrons of the neutral not
to purchase the struck product and the instant case,
when the Union desired patrons of the neutral not to pa-
tronize the hotel at all, while it did business with the
Bakers of Paris, is so striking that I find that Montgomery
Ward & Co., does not apply to the instant case.
In sum, I will recommend that this case be dismissed
because there is no legal basis for the nonemployee union
representatives to handbill on Respondent's private prop-
erty for the purpose in question. I arrive at this conclu-
sion by balancing the competing interests in this case as
indicated above.' 3
i l Cf NLRB v. Babcock & Wilcox Co., supra; 351 U.S. 105.
12 Regarding the General Counsel's citation of Giant Food Markets, I
find that her interpretation of the Board 's statement is erroneous , caused
in part by failing to quote the Board in total context I will do just that:
Although the [area standards] picketing here is dissimilar in purpose
to either the organizational activity involved in Babcock, or the pri-
mary economic picketing by the employer 's employees in Hudgens,
the Board's role is the same-to accomodate the Section 7 rights of
the pickets with the private property rights of the pickets with the
private property rights of the Employer. However, as the Court
pointed out in Hudgens, the locus of the accommodation of these
rights may fall at differing points along the spectrum depending on
the nature and strength of the respective Section 7 rights and private
property rights asserted in any given context
13 In further support of my conclusion I note that Respondent's evi-
dence showed a consistent policy of not permitting unions to picket or
demonstrate on its property. Indeed, there is no evidence that Respond-
ent allowed solicitation on its property , for union or nonunion purposes.
In addition , I note no evidence of other unfair labor practices which
might place the instant dispute in a different context.
3. The Union's access to reasonably effective
alternative means of communication with the public
I am convinced that it is unnecessary to determine this
issue because under the facts and circumstances of this
case,` the law does not permit the Union to handbill on
private property without the owner's permission. In the
event I have erred in this conclusion I make these addi-
tional findings to avoid a possible remand.
First, I note that the General Counsel has the burden
of proof to show lack of effective alternative means
before handbilling on private property. With one excep-
tion, the General Counsel relied on union representatives
as witnesses to show that they could not handbill effec-
tively from the sidewalk. Before briefly reviewing this
testimony, I turn to alternative means of communicating
with the public. One authority mentions use of the
media, such as newspapers, radio, or television.14 These
methods would not be effective here because I reason-
ably assume that most of the hotel's guests are not situat-
ed locally. Accordingly, the media's message would not
likely reach the public, if at all, until after they had al-
ready checked into the hotel. Once there, I further
assume that most persons would be less likely to change
hotels, than if the message reached them before they
checked in.
Similarly, the Union's handbilling of pedestrians, out
for a walk after checking into a hotel, would not likely
be effective, for the same reason indicated above.
As noted above, most persons arriving to register at
the, hotel arrive by vehicle. Accordingly, the question
-becomes whether the Union can effectively reach the
public from the sidewalk under the circumstances
present -in this case. Respondent contends (Br. 32 fn. 28),
that-the Union could change its message so that picket-
ing would be legal under Tree Fruits. For example, if the
picket signs read, "Please do not purchase bakery goods
supplied by the Bakers of Paris because employees work
under substandard conditions," the Union could picket.
Because the public could not distinguish the products of
Bakers -of Paris from those baked by Respondent's em-
ployees, it is difficult to see how this tactic could be ef-
fective. The,suggestion must be rejected as totally lack-
ing in merit.
Finally, the Union could attempt to handbill from the
sidewalk to reach the public before they registered at the
hotel. The General Counsel presented evidence not only
from the Union's agents, but also from a taxi driver who
had substantial experience both picking up and dropping
off guests at the hotel. These witnesses testified' that most
vehicles did not stop at the sidewalk as they pulled into
Respondent's driveway. Again, I must conclude that this
alternative method of reaching the public would not be
effective.
In conclusion, I find that if the balancing of competing
interests in this case includes determining whether rea-
sonable, effective, alternative means of communicating
with the public, then the pendulum swings' toward the
General Counsel.15 Because of my earlier analysis, how-
14 R. Gorman, Labor Law, supra at 261
is Yet, even here on final balance of all relevant factors, and weighing
the totality of the evidence, I would still find for Respondent
FAIRMONT HOTEL
ever, this determination is superfluous. Again, I must rec-
ommend dismissal.16
CONCLUSIONS OF LAW
1. The Respondent, Fairmont Hotel Company d/b/a
The Fairmont Hotel, is an employer within the meaning
of Section 2(2) of the Act, engaged in commerce, and in
an industry affecting commerce, within the meaning of
Section 2(6) and (7) of the Act.
IB In reaching my decision in this case, I read, considered, and, in part,
was guided by the case of D'Alessandro's Inc., 19-CA-14993, a case au-
thored by Judge William J Pannier, III, on April 28, 1983 I am advised
administratively that this case is now pending before the Board on excep-
tions of the General Counsel. The issue in D'Alessandro's, Inc., concerns
the right of a union to picket and handbill on the private property of an
employer, while asking the public not to patronize the employer because
it was nonunion , when the union had no organizational nor area standard
objectives. Because D'Alessandro's, "Inc , is not readily available, I will
send by separate cover a copy of this decision to all parties of record
149
2. The Union, Bakery Wagon Drivers and Salesmen
Local 484, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent has not engaged in the unfair labor
practices alleged in the complaint.
On these findings of fact and conclusions of law, and
on the entire record , I issue the following recommend-
ed"
ORDER
It is ordered that the complaint be dismissed in its en-
tirety.
17 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.