The Fairmont Hotel

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.