Group Health Dental Facility

200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 40-41 Realty Associates, Inc.; and Drs. Paul Cohen and Julius Berkowitz, a Partnership d/b/a Group Health Dental Facility and Amalgamated Dental Union, Local 38-A SEIU, AFL-CIO. Case 2-CA--17879 March 25, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On October 19, '1981, Administrative Law Judge Edwin H. Bennett issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in sup- port of the judge's decision. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this decision and order. This case presents the unusual and difficult ques- tion of whether individuals may picket within the corridors of a privately owned office building lo- cated in midtown Manhattan in New York City. The judge found that the Respondents' violated Section 8(a)(1) of the Act by threatening to cause the arrest of two individuals who, in support of an economic strike, were picketing at the entrance to the dental facility, which is located on the second- floor corridor of a 20-story office building. After balancing the Union's Section 7 right to picket ef- fectively against the landlord's and tenant's rights to limit access to their property, the judge found that the Section 7 right outweighed the property right and that the alternative means of reaching the Union's intended audience were inadequate. We disagree. Contrary to the judge, we find, pursuant to an analysis under our decision in Fairmont Hote1,2 that the Section 7 right and the property right at issue are relatively equal in strength, but that the Union had other reasonable means of com- municating with its intended audience that did not require access to private property. Therefore, we conclude that the Respondents acted lawfully when they barred the Union from picketing at the corridor entrance to the dental facility located on the second floor of this 20-story office building.3 There are two Respondents in this case 40-41 Realty Associates, Inc., the landlord; and Drs. Paul Cohen and Julius Berkowitz, a Partner- ship d/b/a Group Health Dental Facility, the dental facility. 2 282 NLRB 139 (1986) 3 Chairman Stephens adheres to the position stated in his concurring opinion in Fairmont Hotel that an inquiry into the availability of reason- The facts in this case are not in dispute. The Re- spondent dental facility operates a large-volume, low-fee practice that has about 10,000 patients a year. About 90 percent of these patients have insur- ance coverage, either through a union dental plan or a major insurance company such as Blue- Cross/Blue-Shield. Most of the patients with insur- ance coverage are union-represented workers, who receive this benefit either under union contracts or as union members, although some patients with in- surance coverage are not represented by a union and merely receive dental insurance as an employ- er-sponsored benefit. The dental facility is located on the second floor of a 20-story building on West 41st Street in New York City. There are 22 tenants in-the building, but there is only one dental office. The Respondent landlord owns, operates, and man- ages the building. The Union was certified in 1975 to represent a unit of dental assistants, -x-ray assistants, dental hy- gienists, and clerical employees employed by the dental facility. The most recent collective-bargain- ing agreement expired January 1, 1981. The Union and the dental facility bargained for a new contract between November 1980 and February 2, 1981, but reached no agreement. On February 2, 1981, all 20 employees in the bargaining unit went on strike and began picketing on the public sidewalk outside the main 41st Street entrance to the office building where the dental facility is located. Two weeks later, the dental facility hired replacements for the striking unit employees. Between February 2 and 25, 1981, unit employ- ees picketed at the 41st Street entrance to the building every day the dental facility was open, using about four to eight pickets at any one time. Each picket carried a sign 3 feet, 2 inches wide that stated employees of the dental facility were on strike. The pickets also asked individuals entering the building whether they were going to the dental facility; if they acknowledged that their destination was the dental facility, the pickets handed them a leaflet describing the contract dispute and asked them not to patronize the dental facility. On the first day of the picketing, the Union agreed to keep the picketing behind wooden barricades set up a few feet from the building's entrance by the New York City police department. The record indicates that the picketing was orderly. ably effective alternative means of communication is not lmuted to cir- cumstances in which the competing property and Sec. 7 rights are of rel- atively equal strength. Fairmont Hotel, supra. For institutional reasons, however, he joins Member Babson in applying the analysis of the Fair- mont majority here, and he agrees that the balancing of the property and Sec. 7 rights in this opinion properly leads to the consideration of alterna- rive means under that analysis. 288 NLRB No. 23 40-41 REALTY ASSOCIATES 201 On February 25, 1981, after 3 weeks of picketing at the 41st Street entrance, Union Business Manag- er Wilson and unit employee Pollock picketed im- mediately outside the dental facility's entrance in the second-floor corridor of the office building. Wilson and Pollock picketed for about 1 hour. Before going to the second floor, Wilson told Landlord Agent Kugel that the Union planned to picket outside the second-floor corridor entrance to the dental clinic and handed Kugel a copy of a court decision in which a court had allowed a union access to the inside of a high-rise office building to , picket. 4 During the hour that they picketed on the second-floor corridor, Wilson and Pollock stood on either side of the open door to the dental facility holding picket signs measuring 1 ' foot, 2-1/2 inches by 1 foot, 10 inches stating that dental employees were on strike. Wilson and Pol- lock also asked three or four patients who entered the dental facility not to patronize it because the employees were on strike and were trying to get better working conditions. After an hour, Dental Facility Business Administrator Brody called the police and Landlord Agent Kugel. Brody requesti ed that the pickets be removed from the second= floor corridor entrance. A police sergeant and Kugel met Brody on the second floor , shortly thereafter. Pursuant to the request of Brody and Kugel, the police sergeant told the pickets to leave the building or they would be arrested for trespass- ing. Wilson and Pollock left the building immedi- ately. In addition to picketing, the Union also wrote letters to various other unions asking them to inform their members of the strike against the dental facility and requesting them to pressure the dental facility to settle its collective-bargaining dis- pute. During April 1981, at least five unions whose members used the dental facility wrote letters to the dental facility expressing support for the strik- ing employees and warning that if the dental facili- ty failed to sign a contract, the unions would urge their members not to patronize it. The dental facility entrance on the second floor of the office building is located at one end of a hallway about 7-3/4 feet wide by 33 feet long, near a bank of four elevators used by all the tenants in the building. No other tenants have entrances opening out of that hallway although there is one other tenant on the other side of the building. In order to reach the other tenant's facility from the dental facility, it is necessary to go through three doors and around two corners. The only other ddor in that part of the corridor is a fire exit. The The decision was that of the Ninth Circuit Court of Appeals in Seat- tle-First National Bank v. NLRB, 651 F 2d 1272 (9th Cu- 1980). , other second-floor tenant is the Health and Hospi- tal Corporation, which occupies over half of the space in the building. It has 40 employees located on the second floor, as well as a cafeteria used by all of its employees. Its second-floor facility, how- ever, is served by two elevators located at the other end of the building, which are used only by employees of the Health and Hospital Corporation. These elevators are located on the 40th Street side of the building, where there is a separate entrance used only by the Health and Hospital Corporation. The Union did not picket the 40th Street entrance to the building, after being informed early in the strike that it was used only by the Health and Hos- pital Corporation. Landlord Agent Kugel testified that the Health and Hospital Corporation was un- aware that any picketing had occurred on the other side of the second floor. The judge found that the Union's second-floor picketing in support of an economic strike was lawful, protected activity, noting that the picketing was peaceful and free from disruptive tactics. The judge stated that during such a bargaining dispute the Union had a right to conduct its picketing in a manner that would impart its message effectively at the point of maximum impact, namely at the second-floor corridor entrance to the premises where there was no turning back for those who might honor a picket line. The judge also found that the Union had no reasonable alternative means of reaching its intended audience, because the pick- eters could not readily identify the dental facility's patients, replacement employees, and suppliers at the street level. The judge noted that the Union's appeals to other unions were clearly a less effective and more costly way to publicize its contract dis- pute than picketing aimed directly at customers and that these appeals could not possibly reach re- placement employees or suppliers, who could only be identified at the site. The judge also found that the landlord and the dental facility had no basis for arguing any substan- tial-injury to their property rights. Concerning the landlord's property interest, the judge noted that the second-floor hallway was open to the public and that the landlord had no objection to the pick- eting there other than a wish to satisfy its tenant. Regarding the dental facility tenant's property in- terest, the judge rejected its arguments that the second-floor picketing would be disruptive to its dental practice because patients and replacement employees might be subject to harassment when entering the dental facility, that any disturbances in the hallway might bother patients awaiting treat- ment in its reception area, and that patients leaving the dental facility in a "drugged or traumatized" 202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD condition would be trapped in the hall waiting for an elevator. The judge found that the occasional outbursts of yelling and name-calling by picketers on the sidewalk did not warrant drawing the infer- ence that picketing on the second floor would be unruly; that the dental facility's treatment of pa- tients did not require a different result, noting this would not be any different than picketing that has been allowed at the door to a hospital; and that direct appeals to patients "trapped" on the second floor waiting for an elevator are what employers must endure in any strike situation. The judge struck the balance in favor of allow- ing the picketers access to the second floor, relying on the Supreme Court's decision in Hudgens5 and the Ninth Circuit's decision in Seattle-First National Bank. 6 In Seattle-First, the court allowed hand- billers protesting an economic strike involving a large restaurant located on the 46th floor of the Se- attle First National Bank building access to the open area immediately adjacent to the restaurant, because potential customers and employees of the restaurant were not readily identifiable at the out- side entrances to the building. The judge conclud- ed that the Respondents in this case violated Sec- tion 8(a)(1) of the Act by denying the picketers access to the second-floor corridor on which the entrance to the dental facility is located. Contrary to the judge, we find that the Respond- ents acted lawfully when they barred the Union from picketing on the second-floor corridor of the office building. In Fairmont Hotel, 7 supra, which issued after the judge's decision here, the Board set forth a new standard for resolving cases where an employer has denied individuals engaged in pro- tected Section 7 activity access to private property. The Board held in Fairmont that in order to bal- ance or accommodate the competing interests in such cases in accordance with the principles estab- lished by the Supreme Court in NLRB v. Babcock & Wilcox, 8 Hudgens, 9 supra, and Sears, Roebuck & Co. v. San Diego County Council of Carpenters, 1° it would weigh or evaluate the relative strengths of the Section 7 right and the property right at stake to determine whether one right was clearly more compelling. Under the Board's analysis in Fair- mont, if the rights asserted by the parties are rela- tively equal, the determinative factor will be whether effective alternative means of communica- 5 Scott Hudgens v NLRB, 424 U S. 507 (1976). 6 Seattle-First National Bank v NLRB, 651 F.2d 1272 (9th Cir 1980), enfg. in pertinent part 243 NLRB 898 (1979), on remand 258 NLRB 122 (1981) 7 282 NLRB 139 (1986). 8 351 U.S 105 (1956). 9 424 U.S. 507. 1° 436 U S. 180 (1978) tion are available that would obviate access to pri- vate property. 282 NLRB 139. Applying the analysis of Fairmont Hotel in this case, we find that the Section 7 right and the prop- erty right asserted are both strong ones and are equally compelling. The picketers here included employees engaged in an economic strike against their own employer, who were publicizing their collective-bargaining dispute by picketing and handbilling at the second-floor corridor entrance to their employer's facility. "The right to picket in support of an economic strike is at the core of Sec- tion 7." 11 See Seattle-First, supra at 1276; Steel- workers v. NLRB, 376 U.S. 492, 499 (1964); Team- sters Local 807, 87 NLRB 502, 504-505 (1949). On the other hand, the property right at stake is a compelling one also. The entrance. to the Re- spondent dental facility's office is in a 7-3/4 foot wide, 33 foot long second-floor corridor of a 20- story office building in midtown Manhattan. The second-floor corridor entrance is one floor above the building's main entrance level and is situated in a quiet area with little or no public traffic other than those having business with the dental clinic. Although members of the general public are not physically barred from reaching this corridor, only patients, employees, and suppliers of the dental fa- cility have occasion to go there. Thus, the use of the corridor is quite limited, the space immediately adjacent to the clinic entrance is small, and the Re- spondents retain a strong property interest in it. In our view, the Section 7 right and the property right are equally compelling in this case, or at least sufficiently so to merit considering whether the General Counsel has met the burden of showing that the Union, in the absence of access to the Re- spondents' second-floor corridor, had no reasonable alternative means available for communicating the existence of its dispute with the dental facility to its intended audience. 1 2 The Union had reasonable alternative methods of conveying its message to the intended audience other than picketing in the second-floor corridor, as amply demonstrated by the record evidence in this case. First, and most significantly, the Union did effectively communicate with the dental facility patients, replacement employees, and suppliers by picketing and handbilling at the 41st Street en- trance to the office building between February 2 " We do not discount the importance of the Sec. 7 right to strike, as our dissenting colleague suggests. We agree on Its importance. The diffi- cult question here is not whether the Sec 7 right is important, but rape where that core activity may take place. 12 As noted in fn 3 above, although Chairman Stephens would consid- er the availability of alternative means m any event, he agrees that con- sideration of this factor is properly reached under the principles of Fair- mont Hotel. 40-41 REALTY ASSOCIATES 203 and 25, 1981, a period of more than 3 weeks. During that time, large picket signs made clear that the Union's dispute was with the dental facility, which was the only dental office in the building; and through their picket signs, handbills, and oral statements, the picketers were able to convey their message to virtually all of the people entering the building, which necessarily included virtually ev- eryone who might be going to the dental facility." In addition, the Union could assure that the sig- nificance of its picketing at the 41st Street entrance would not be lost on patients of the dental facili- ty14 by requesting that other unions providing in- surance coverage to these individuals through or by the dental facility notify their members of the strike. In fact, the Union here did write letters to other unions requesting such support, and many of the unions responded by warning the dental facility that they would urge their members not to patron- ize it if it did not sign a contract. We find that the picketing, handbilling, and oral statements made by the Union's members and its supporters at the 41st Street entrance to the building, coupled with the Union's requests to other unions for a boycott by their members of the dental facility, provided a rea- sonable alternative to access to the private, second- floor hallway immediately outside the dental facili- ty. We do not agree with our dissenting colleague that Hudgens and Seattle-First dictate a holding in this case that the Respondents violated Section 8(a)(1) by their actions in denying union pickets access to the narrow corridor outside the dental fa- cility. In Hudgens, the Court held that the rights of individuals to enter private property in order to communicate a message in support of an economic strike were governed entirely by our statute rather than by the First Amendment and that the test to be applied was the test outlined in NLRB v. Bab- cock & Wilcox, 351 U.S. 105 (1956), which directed the Board to seek an accommodation of Section 7 rights with private property rights "with as little destruction of one as is consistent with the mainte- nance of the other." Hudsrens, 424 U.S. at 522, 'a We note that a small number of the dental facility's patients are em- ployees of the Health and Hospital Corporation, who usually enter the building through the 40th Street entrance and thus would not have learned of the dispute from the picketing at the 41st Street entrance This does not affect our conclusion that the TJnion was able to reach the vast majority of the dental facility's patients by picketing at the 41st Street ent ranee Moreover, there was nothing to prevent the Union from picket- ing at the 40th Street entrance also, if it could show that some of the dental facility's patients entered the building there 14 Although the exact percentage of the dental facility's customers who are union members is unclear, the record does establish that about 90 percent of its patients have insurance coverage of some sort and that most of its patients with insurance coverage are union-represented work- ers who have this benefit either as union members or under a union con- tract quoting Babcock & Wilcox, 351 U.S. at 112. In striking that accommodation on remand, the Board concluded that, given the audience that the picket- ers sought to reach and the physical layout of the large shopping mall in which the primary employer in the labor dispute was located, it was reasonable to permit the picketers to communicate their mes- sage on the mall property immediately outside the employer's store. Hudgens, 230 NLRB 414 (1977). Although acknowledging that the privately owned property could not be equated in all respects with public property, the Board noted that the common areas in this large mall functioned similarly to public sidewalks bordering stores in a business dis- trict.15 In assessing the reasonableness of the alternative of standing on public property at the mall perime- ter, the Board considered both the dilution of the picketers' effectiveness at a great distance from the store of the primary employer and the picketers' inability, from that distant vantage point, to deter- mine who, in the undifferentiated mass of custom- ers at the large, 60-store shopping center, might be a patron of the primary employer's store and thus someone at whom the strikers aimed their message. Hudgens, 230 NLRB at 416-417. The Board espe- cially noted, however, that the store's customers were not necessarily a defined group even in their own minds when they entered the mall, because they might become patrons of the store "on im- pulse" after they had entered the mall. Id. at 416. (This might also be a considerable time after they had seen and forgotten the picketers' message.) This same consideration of patronage on "impulse" at a considerable distance in time and space from the communication of the strikers' message appears in the court of appeals' opinion in Seattle-First, on which our colleague relies. There, as the court pointed out, many occupants of the building might arrive in the morning for work and not decide until several hours later whether to patronize the 46th- floor restaurant, which was the primary employer 15 When, in Hudgens, the Supreme Court rejected any first amendment basis for labor picketing or leaflettmg on private property, it also noted that it had previously (in Lloyd Corp. V. Tanner, 407 U.S. 551, 568-569 (1972)) limited Marsh v. Alabama, 326 U S 501 (1946), a first amemdment soliciting case, to its facts—i e, limited its holding to cases in which the property at issue is in virtually every respect like a municipality Hud- gens, 424 U S. at 519-520. The Hudgens Court expressly overruled Food Employees Local 590 v. Logan Valley Plaza, 391 U S. 308 (1968), which had relied on Marsh in recognizing Federal constitutional rights of indi- viduals to picket on a mall concerning a labor dispute Iludgens, 424 U.S. at 518. The Court did not suggest, however, that the presence or absence of various quasi-public characteristics of property are irrelevant to the balance that the Board must strike, under Babcock & Wilcox, between property interests and Sec. 7 rights Indeed, the degree that an owner opens up property to the general public reasonably has a bearing on the strength of the property right asserted. See fn. 14, infra, and accompany- ing text. 204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD at whom the strike was aimed. Seattle-First, 651 F.2d at 1275-1276. That factor is missing in the present case. Al- though the manner of consuming certain health care services has changed in recent years, it is highly unlikely that visitors to the dental facility here did not know that they were headed for the dental facility when they entered the building's main entrance at 41st Street, but instead were "im- pulse" purchasers of dental services. Except for a few of the dental facility's 10,000 patients who worked for the Health and Hospital Corporation (above at fn. 11), there is here, unlike in Seattle- First, no evidence that individuals patronized the dental facility from locations within the building. The most likely inference here is that the dental fa- cility patients and nonstriking employees came to the building intending to visit the dental facility, and we cannot conclude that the slight loss in im- mediacy of the Union's message caused by relegat- ing the picketers to the area immediately outside the building compels a holding that the pickets must be allowed to stand in the privately owned corridor just outside the dental facility. Such a holding would hardly maintain the property owner's rights at all, rights that—as the earlier analysis of the physical characteristics and custom- ary use of the property in question here indicates— deserve relatively greater protection from trespass than the quasi-public areas involved in Hudgens and (to a somewhat lesser extent) Seattle-First, to which large numbers of the general public were routinely invited and through which they were ex- pected to pass.16 By contrast, our holding that the Respondents could deny the picketers access to the corridor, while assuring the "maintenance" of the property rights in question, cannot be said to threaten the "destruction" of the Section 7 rights at issue. Bab- cock & Wilcox, 351 U.S. at 112. To be sure, it does not assure the Union maximum effectiveness; but in that regard, we take issue with the statement by the judge below that "in all cases, absent some overriding consideration not present here the pick- ets have a right during the bargaining dispute to impart their message to patients, suppliers, and non-striking employees at the point of maximum impact, namely at the entry to the struck premises where there is no turning back for those who 16 The significance of this distinction between the nature of the prop- erty at Issue here and the nature of the properties at issue in Hudgens and Seattle-First did not go unnoticed in Judge Newman's opinion for the Second Circuit vacating the district court's grant of a 10(j) injunction earlier in these proceedings 668 F 2d 678, 680-681 (2d Cir. 1982). See also Pruneyard Shopping Center v Robins, 447 U S 74, 83-84 (1980) (find- ing no unconstitutional invasion of property rights where a state law mandated individual petitioners' access to common areas of a large shop- ping center), cited in Seattle-First, 651 F 2d at 1277 fn 8 might be inclined to honor a picket line" (emphasis added). This is a principle, we think, unsupported in law. Indeed, the Ninth Circuit expressly ac- knowledged that striking employees lacked any "absolute right to picket at every point of optimum effect." Seattle-First, 651 F.2d at 1276, quoting from Hudgens, 501 F.2d 161, 168 (5th Cir. 1974), revd. on other grounds 424 U.S. 507 (1976). Even more fundamentally, the Supreme Court in reach- ing its conclusion about the proper accommodation of rights in Babcock & Wilcox, held that the nonem- ployee organizers could not solicit employees on the employer's parking lot even though the Board—in a factual finding not overturned by the Court—had determined that the workplace was a more effective place for soliciting than the employ- ees' homes. 351 U.S. at 107-108; 109 NLRB at 494.17 Although our dissenting colleague states that he is not insisting, on a union's "right to picket at every point of optimum effect," Seattle-First, 651 F.2d at 1276, his discussion of the Union's right of confrontation with members of the targeted audi- ence, which appears to include the right to identify members of that audience, to stop them, and to talk to them face to face before they enter the premises 17 Contrary to our dissenting colleague's assertion, we are acutely aware of the fundamental importance of peaceful economic picketing as a Sec. 7 right Moreover, to the extent that the right to picket may include an element of confrontation, our holding here does not deprive the Union of an opportunity to "confront," as that term was used by the court m NLRB v Furniture Workers (Jamestown Sterling), 337 F 2d 936 (24 Cm 1964), the case relied on by our colleague for the notion that confronta- tion is a necessary aspect of picketing In that case, employees attached "on strike" signs to poles in front of their employer's plant and stationed themselves in automobiles in a parking lot across the street. Because em- ployees, customers, and suppliers approaching the plant did not encoun- ter, or "confront," the alleged picketers, the court was unwilling to accept the Board'S conclusion that the union's activity constituted picket- ing. By contrast, in the present case, the conventional picketing by the Union at the buildifig's 41st Street entrance was surely adequate to satisfy the court's definition of picketing Additionally, to the extent that confrontation may be viewed as an ele- ment of picketing, it is derived from the nature of picketing itself and not limited, as our colleague would have it, only to picketing in support of primary economic strikes Indeed, in Jamestown Sterling itself, the puta- tive picketing was alleged to be recognitional picketing. Nevertheless, the Board repeatedly has found in recent access cases that mcicetmg at a point away from the entrance to the primary employer's facility, at which customers and employees of both the primary employer and other employers would pass, constituted reasonable alternative means to picket- ing on private property directly in front of the employer's facility See, e.g., Greyhound Lines, 284 NLRB 1138 (1987) (recognitional and unfair labor practice picketing), Smitty's Super Markets, 284 NLRB 1188 (1987) (informational picketing with potential bargaining objective), and Brown- mg's Foodland, 284 NLRB 939 (1987) (area standards picketing) The Board in those cases did not find that requiring the picketing to occur at locations removed from the employer's entrance unduly "diluted[d]" the "inherent properties" of the picket line, to use our colleague's language. Likewise, in attempting to strike a reasonable accommodation in the present case between the Union's right to picket and the Respondents' private property nght, we simply find that, even if limited to picketing on public property, the Union's Sec 7 right is adequately protected here, and, accordingly, infringement on a property right as strong as the one at issue here is not warranted 40-41 REALTY ASSOCIATES 205 associated with the primary dispute, suggests rec- ognition of a right of maximum effectiveness. These additional or subsidiary rights may or may not attend the right to picket, but to insist on them in every instance in cases in which we also must take into account important property rights comes perilously close to requiring a right to picket "at every point of optimum effect." 1 8 Finally, we note that there is no substantial con- tention, and the dissent does not argue otherwise, that the picketing at the 41st Street entrance cre- ates a concern for secondary effects. Although a union has an obligation to minimize the effects of its picketing on neutrals at a common situs by pick- eting "reasonably close" to the primary's situs, Sailors Union of the Pacific (Moore Dry Dock), 92 NLRB 547 (1950), the Board and the courts gener- ally have found this requirement an insufficient basis for compelling access to private property. Compare Wire Service Guild Local 222 (Miami Herald), 218 NLRB 1234 (1975), enfd. 532 F.2d 184 (5th Cir. 1976), and Teamsters Local 83 (Allied Con- crete), 231 NLRB 1097 (1972), enf. denied 607 F.2d, 827 (9th Cir. 1979). We find, therefore, that the Respondents in this case were not required to grant the picketers access to the second-floor corridor of the Respond- ent's 20-story office building, and thus the Re- spondents did not violate Section 8(a)(1) of the Act by threatening to cause the arrest of the individuals engaged in picketing at that location. Accordingly, we will dismiss the complaint. ORDER The complaint is dismissed. MEMBER JOFIANSEN, dissenting. Today's decision distorts and erodes an impor- tant Section 7 right—the right to strike—where al- ternatives to access to an employer's premises for exercise of that right have proven unreasonable. Because this disposition does not reflect the thor- ough consideration of both statutory and property interests that the Supreme Court found necessary to their proper accommodation in Hudgens v. NLRB' and because it retreats from the Board's 12 This is not a case, after all, where we have relegated the pickets to an area where they are unable to confront the target audience. As noted wilier, the record reflects that prior to entering the second-floor corridor on February 25, the pickets engaged in picketing, handbilling, and oral discussion with those entenng the 41st Street entrance for a period of at least 3 weeks Moreover, this is not a case where we have required the pickets to engage in some lesser form of Sec. 7 activity other than picket- ing. Cf Hughes v Superior Court, 339 U S. 460, 465 (1950). The "signal" of picketing at the 41st Street entrance is estabhshed in the record and is quite apparent It 424 US 507 (1976) determination in Fairmont Hotel2 to examine each interest fully, I dissent. The facts are not in dispute. At issue is the ex- pulsion of a union business agent and an employee engaged in peaceful economic picketing from the interior entrance of a dental clinic located on the second floor of a 20-story high-rise office building. Employees and patients enter the clinic by an en- trance on Manhattan's West 41st Street that the clinic shares with all but one of the building's 22 other tenants. The second floor consists of 21,000 square feet of space. The entrance to the clinic is at the end of a hallway 33-feet long and 7-1/2-feet wide. Lining the opposite wall of the hallway is a bank of elevators serving the 41st Street entrance. The only other tenant on the floor is the Health and Hospital Corporation, which occupies about a third of the building and whose second-story em- ployees normally use two elevators at the other end of the building. Initially, employee and nonemployee pickets were stationed outside the 41st Street entrance and then were ordered behind wooden barricades a few feet from one side of the entrance by the New York City Police Department. From behind the barricades, the pickets used picket signs and hand- bills in an effort to influence those entering the building who might have business with the dental clinic to honor its picket line. Those entering from the west passed the pickets as they entered the building, while those approaching from the east passed the eastern-most point of the picket line only briefly as they turned sharply about the corner of the stairway that abuts the building's en- trance and leads to the subway. Between February 2 and 25, 1981, first 8 to 10 and later 4 to 6 pickets manned the line from 8:30 a.m. to 5 p.m. Monday through Friday, and 8:30 a.m. to 4 p.m. Saturday. The clinic services about 10,000 patients annually and specializes in prosthetic dentistry that typically entails weekly appointments over a 4- to 5-week period. The overwhelming number of patients are by appointment, but there are some walk-in pa- tients daily. Only 30 to 35 percent of the patients return on an annual basis for followup treatment. Some of the pickets, both employee and nonem- ployee, had had no contact with patients, and, ac- cording to dental assistant Carmen Boisseau, as many as five patients per day are employees of the Health and Hospital Corporation, who, as noted above, use a separate entrance to enter the build- ing. Because of the difficulty of identifying pa- tients, pickets would at times question those enter- ing the building about their destinations and, if 2 282 NLRB 139 (1986) 206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD those individuals acknowledged that they were vis- iting the clinic, the pickets would hand them leaf- lets. As noted by the judge, however, pickets would have to persuade these individnals first to identify themselves and then to stop long enough to receive a spoken or a written message. Regard- ing strike replacements, Union Business Manager Wilson testified he could recognize only five of those that the Employer had hired. The judge found that, as the pickets greeted employees enter- ing the building from the 41st Street entrance, they "could not reasonably be expected to know, and did not know, in any substantial number, those per- sons intending to visit, or who had visited, the Dental Facility." On February 25, two of the pickets stationed themselves outside the clinic entrance on the second floor with picket signs reduced in size from the 38 inch width used on the picket line to 14-1/2 by 22 inches. At the request of Group Health Busi- ness Administrator Brody and Landlord agent Kugel, the police threatened the pickets with arrest for trespass. Thereafter, both pickets departed. In agreement with the judge, who applied the principles of Seattle-First National Bank, 243 NLRB 898 (1979), and the opinion of the Ninth Circuit Court of Appeals enforcing that decision,3 I find that in order for the pickets in this case to exercise their guaranteed right to picket in support of collective-bargaining demands, it is necessary that they be afforded access to the area outside the entrance to the clinic. This conclusion derives from the peCuliar circumstances of this case as well as the very nature of the right to engage in economic picketing. That right requires, at minimum, that a union be able to confront its audience. As stated by the Ninth Circuit in approving access for picketing outside a restaurant on the 46th floor of the Seattle First National Bank Building: In the fmal anaylsis, our approval of the Board's conclusion that pickets should be al- lowed on the 46th floor rests on the peculiar nature of the picketing. Even if the union can adequately inform most of the restaurant's cus- tomers of the existence of the strike without sta- tioning picketers on the 46th floor, the union cannot fully implement its section 7 rights with- out confronting the customers in front of the res- taurant. Picketing is more than mere dissemina- tion of information. "The loyalties and re- sponses evoked by picket lines are unlike those flowing from appeals by printed words" Hughes v. Superior Court, 339 U.S. 460, 465 3 651 Fld 1272 (1979). . . . (1950). [651 F.2d at 1276 (emphasis added)] Restricting the sweep of Section 7 here to a narrow right generally to inform the public, as the majority would, devalues and discounts the true character of the vital interest at stake. Economic picketing has long been recognized as "more than free speech"; its nature is to "induce group action of one kind or another, quite irrespective of the ideas being disseminated." 4 And the Second Cir- cuit Court of Appeals has also observed that: [O]ne of the necessary conditions of "picket- ing" is a confrontation in some form between union members and employees, customers, or suppliers who are trying to enter the employ- er's premises.6 To hold that pickets need only be able to express their message in some general way and that it is the target audience that can then choose whether or not to emerge from the crowd and receive that message is inconsistent with both Seattle-First and other precedent defining the legitimate objectives of picketing in support of the right to strike. Thus, both the Board and the courts have held that pa- trolling, even with the use of picket signs, that does not include some form of "confrontation" is not "picketing" within the meaning of Section 8(b)(4)6 or Section 8(b)(7).7 As the judge correctly observes: [W]hat is significant . . . is not whether the audience is of a mind to receive the message, but rather the ability of the pickets to commu- nicate it. Effective communication here re- quires that the pickets be able to spot the audi- ence and not the other way around. As the judge further observed in rejecting on-street picketing as a reasonable alternative to picketing at 4 Teamsters Local 695 v. Vogt, Inc., 354 U S. 284, 289 (1957), see also Hughes v Superior Court, 339 U S. 460, 465 (1950) 5 NLRB v Furniture Workers (Jamestown Sterling), 337 F 2d 936, 940 (1964). In remanding the proceeding to the Board for a further heanng to determine whether the union's conduct in that case constituted picketing wrthm the meaning of Sec. 8(b)(7)(B) m light of perceived lack of "con- frontation," the court did not "consider it necessary or appropnate . to attempt to define the precise boundary of what the Board may consid- er to be picketing . . " 337 F.2d at 940. The court did, however, ques- tion whether the presence of employees there stationed m automobiles outside the plant "was intended to and did have substantially the same significance for persons entering the employer's premises as if they had remained with the signs . ." Id 6 Typographical Union Local 16, 151 NLRB 1666 (1965) NLRB v. Furniture Workers (Jamestown Sterling), 337 F.2d 936 (2d Or 1964) That a union's picket lme serves as a "signal," which may under certain circumstances subject it to regulation under Sec. 8(b)(7) is not itself dispositive, because the Board has also defined the objective of such "signal" as "to induce those confronted by its agents to take the kind of action which traditional picket lines were mtended to provoke." Teamsters Local 688 (Levitz Furniture), 205 NLRB 1131 (1973). 40-41 REALTY ASSOCIATES 207 the clinic entrance, the disinclination of patients crossing the picket line to identify themselves was the obvious obstacle to any direct confrontation on 41st Street. And it would be fatuous to suppose that those nonstriking employees or strike replace- ments a union seeks to confront generally would come forward willingly and identify themselves to the Union. in such circumstances, there is minimal opportunity for the Union to avail itself of "the power of an appeal to reason by all peaceful means for gaining access to the mind." Picketing is by definition confrontational, and it is by exercise of this right without undue restric- tion that pickets effectively communicate with target nonstriking employees, customers, and sup- pliers. In support of his union's lawful economic objectives, the picket appeals to a whole host of convictions and emotional reactions among his au- dience. To other workers who share his reluctance to cross a picket line, he seeks to communicate a sense of loyalty and fairness, as well as a willing- ness to return the favor if' the need arises. 9 In short, his subject "may be moved by the habits in- culcated by union ritual, by common loyalties, by fear of social ostracism, and by all those other psy- chological forces which bind individuals into a group.' 10 It is by their capacity to afford full exercise of the right to strike that the effectiveness and reason- ableness of alternative means of communication are measured. 11 No less is compelled by Section 13, which directs that the Act not be construed "to interfere with or impede or diminish" the right to strike. 12 Nor are these considerations rendered any less germane by the fact that the parties' rights and liabilities are measured not under the 1st and 14th amendments, but under Section 7 of the Act. To the contrary, while Section 7 and constitutional rights are not necessarily coterminous, in Hudgens v. NLRB," the Court, after rejecting the conten- tion that picketing on priva Le property was consti- tutionally protected, entrusted to the Board the "primary responsibility" to strike the "proper ac- commodation," with reference to "the content and context of the Section 7 right being asserted."" Milk Wagon Drivers Local 753 v. Meadowmoor Dairies, 312 U S. 287 (1941) 3 See Printers Local 388 v. LeBaron, 171 F.2d 331 (9th Cir 1948). " Cox, Strikes, Picketing and the Constitution, 4 Vanderbilt L Rev. 547, 600 (1951). " See also my separate position in Medina Super Duper, 286 NLRB 728, 730 fn. 5 (1987). 13 "Picketing has been equated with striking for the purposes of Sec- tion 13" NLRB v. Teamsters Local 639 (Curtis Bros ), 362 U.S. 274, 281 fix 9 (1960). 13 424 U.S 507 14 Id at 521. Further, the Court noted, "[t]he locus of that ac- commodation . . . may fall at different points de- pending on the nature and strength of the Section 7 rights and private property asserted in any given context." 15 The Court's remand was clearly in part to enable the Board to apply its expertise to evalu- ate the statutory right at issue in striking the appro- priate accommodation, and no pains were spared in the Board's decision on remand to do precisely that. 1 6 Applying the teachings of Hudgens, the Board engaged in such scrutiny of the parties' interests in Fairmont Hotel," examining in the case of the area-standards message there at issue: the "nature of the right asserted, the purpose for which it is being asserted, the employer that is the target of that activity, the situs of that activity, the relation- ship of the situs to the target, the intended audi- ence of the activity, and, possibly, the manner in which the right is being asserted." 19 Likewise under Hudgens it is for the Board here to examine and define the "nature and strength" of the Section 7 claim and to recognize the need in this case to identify and confront strike replacements, patients, and suppliers of the clinic as an inherent property of the right that it is statutorily entitled to exercise. Clearly, these objectives pertain to the nature, pur- pose, and audience criteria, 19 set forth above, that were examined and weighed in Fairmont.2° I reject the notion that allowing pickets to stand outside the clinic "hardly maintain[s] the property owner's rights at all." The issue is not, as the ma- jority frames it, whether the pickets have a right to station themselves at the point of "maximum impact," but how picketing with clearly defined objectives can be preserved, even minimally, "with as little destruction . . . as is consistent with the maintenance of' the property owner's interest.21 Ori these facts, this was accomplished by precisely the accommodation made by the pickets in the in- terest of lessening the burden on the Respondent's property interest when they commenced picketing on the second floor: they reduced the picket signs from a 38 inch width to 14-1/2 by 22 inches; they reduced the number of pickets to two, consistent 13 Id. at 522. 16 Scott Hudgens, 230 NLRB 414 (1977). " 282 NLRB 139 (1986). 18 Id at 142 '9 See, e g., Emery Realty, 286 NLRB 372, 375 (1987). 29 As stated m Fairmont, "not every Section 7 right is equally compel- ling,", and the lawful economic objectives of picketing m furtherance of the right to strike require that that right be accommodated at a different pomt on the spectrum from other Sec 7 activity that may involve picket- ing. 21 Hudgens, 424 U.S. at 522, quoting NLRB v Babcock & Wilcox, 351 Us. 105, 112 (1956). 208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD with the pickets' activity in Seattle-First; and they picketed in a quiet and nonintrusive manner." In Babcock & Wilcox,23 which my colleagues cite to support the accommodation they have for- mulated, the union's exclusion from the employer's premises did not necessitate its resort to alterna- tives that failed to accomplish its organizing pur- pose. Rather, as noted by the Court in that deci- sion, the union effectively imparted its organiza- tional message to employees using the "usual chan- nels:"24 "personal contacts on streets or at home, telephones, letters, or advertised meetings to get in touch with the employees."" In contrast to the majority's accommodation here, the Section 7 in- terest remained intact notwithstanding the organiz- ers' exclusion from company-owned parking lots." My colleagues distinguish Seattle-First on the sole attenuated factual difference of a greater op- portunity for "impulse" patronage of the Mirabeau Restaurant by diners who worked within the Seat- tle First National Bank Building. First, while it is true that the Ninth Circuit's decision noted that a significant portion of lunchtime customers ap- proached the restaurant from within the building (having perhaps forgotten picket signs they had seen on their way to work), this segment of the pickets' audience was among members of the public, with which a union has a less vital interest in communicating than with employees. 27 Here, the Union additionally sought to identify and con- front strike replacements hired by Group Health. Thus, while the "impulse" patronage factor certain- ly contributed to the Mirabeau pickets' need for access to the 46th floor, I am puzzled that my col- leagues find this distinction to be a pivotal one, es- pecially when it only seems to reinforce the princi- ple that pickets need to confront their audience. Second, the Ninth Circuit recognized that only a 22 Although the Respondents raise the specter of "drugged and trau- matized patients" trapped in the hallway as they leave its facility and forced to endure picketing as they wait for an elevator, it should be noted that the location of the clinic's entrance at the end of the hallway placed the pickets far enough from the elevators so as not to encroach on space directly in front of them Regarding the Respondents' further con- tention that the picketing was likely to distract patients in the waiting room inside the opened door where the pickets were stationed, it hardly bears pointing out that if this were genuinely of concern, the clinic need only have closed that door I also fail to apprehend why my colleagues label the hallway in front of the Mirabeau Restaurant in the Seattle-First National Bank Building "quasi-public" but apparently consider the hallway in front of the dental clinic to be less than so. The only element suggesting greater openness that distinguishes the restaurant lobby was that two other building ten- ants made use of it—a fact suggesting more of a property burden , by lobby picketing there than here because of the potential to enmesh neu- tral employers in that dispute. 23 351 US. 105 (1956). 24 Id. at 112 25 Id. at ill. 26 See also my dissent in SCNO Barge Lines, 287 NLRB 169, 174-175 (1987). 27 See Greyhound Lines, 284 NLRB 1138 (1987) slight portion of dinner patrons approached the res- taurant from inside the building. Thus, "impulse" patronage was no material factor in permitting access to dinner patrons. But, while the court's remand to the Board ordered restrictions on the number of pickets and manner of picketing, it placed no such restrictions on the time of picketing, though it obviously would have done so if the presence of intrabuilding lunchtime traffic by "ina- pilse" diners were considered critical to its ap- proval of access. The majority states that an accommodation that insists on taking account of the need to confront and engage in face-to-face discussions "comes peril- ously close" to requiring a right to picket "at every point of optimum effect." 28 I caution that the greater peril is that the Board lose sight of these re- alities of the picket line and dilute its inherent properties beyond recognition in the quest for al- ternative means of communication. As Justice Frankfurter stated for the Court, "Peaceful picket- ing is the working man's means of cornmunica- tion."2 9 I find that, given the strong Section 7 interest, the lack of reasonable alternatives to engage in ef- fective picketing anywhere but at the entrance to the Group Health Dental Facility,30 and the re- straint with which the Union picketed at this loca- tion, the Section 7 interest outweighs the Respond- ent's property interest, and the latter is required to yield. Accordingly, I find, contrary to my col- leagues, that the Respondents' threat to cause the arrest of the pickets violated Section 8(a)(1). 28 In a vacuum, that is the right guaranteed by Sec. 7, and it must be the starting point for any proper analysis, else the employees' rights are cut short from the start. We are not, of course, operating in a vacuum and that right must be balanced against other rights, notably property rights. 29 Milk Wagon Drivers, supra, 312 U.S. at 293. See ars° Carpenters Local 203 v. Ritter's Cafe, 315 U S. 722 (1942), 30 As a further means of appealing to patients who were employees of the Health and Hospital Corporation, the majority proposes picketing at the 40th Street entrance, which served that organization alone. This alter- native, which the Union did attempt, increased the potential patient audi- ence by no more than five per day and provided little better opportunity to identify even those few individuals In addition, as the majority points out, the Union did appeal to other unions by mail to urge their members not to patronize the clinic until it signed a contract The method or inten- sity of dissemination of any such information by the other unions was clearly beyond Local 38-A's control, however, as would be any opportu- nity to verify their success for meeting the alternative means burden. The record does not indicate either what percentage of the clinic's patients could have been targeted by these once-removed appeals nor even that any actually were. Judy M. Sandler, Esq., for the General Counsel. Karl Savryn, Esq. (Dornbusch, Mensch & Mandelstam), for the Respondent. Roger H. Madon, Esq. (Sturm & Peri), for the Charging Party. 40-41 REALTY ASSOCIATES 209 — DECISION STATEMENT OF THE CASE EDWIN H. BENNETT, Administrative Law Judge. This case was heard before me on June 22, 1981, in New York, New York, on an amended complaint and notice of hearing that issued on May 4, 1981. The unfair labor practice charge giving rise to this proceeding was filed by Amalgamated Dental Union, Local 38-A, SEIU, AFL-CIO (the Union) on February 26, 1981, and amended on March 31, 1981, 1 against Respondent 40-41 Realty Associates, Inc. (Respondent Landlord) and Ree spondent Drs. Paul Cohen and Julius Berkowitz, a Part- nership d/b/a Group Health Dental Facility (Respond- ent Dental Facility) (at times collectively referred to simply as Respondents). The ultimate issue for resolution is whether Respond- ents violated Section 8(a)(1) of the Act by threatening to have arrested employees and individuals engaged in pick- eting Respondent Dental Facility during the course of an economic strike, where such picketing occurredin the public corridor of a multistory office building, at the en- trance door to Respondent Dental Facility. Respondents admit that they sought to prohibit such private property picketing but assert various legal defenses in justification of this conduct. On the entire record, 2 including my ob- servation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel, and Respondents, I make the following FINDINGS OF FACT3 I. JURISDICTION Respondent Landlord is a New York partnership en- gaged in the management, operation, and rental of a 20- Story commercial building located at 230 West 41st Street in the city and State of New York (the building), housing 22 tenants including Respondent Dental Facility. Respondent Landlord annually derives gross revenues in excess of $100,000 from the rental of space in this build- ing, of which amount in excess of $25,000 is derived from Respondent Dental Facility. Respondent Dental Facility annually derives gross revenues in excess of $500,000 and annually purchases and receives at its loca- tion in the building equipment and materials valued in excess of $10,000 directly from outside the State of New York. Respondents admit, and I find, that each one is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Further, Respondent Dental Facility admits, and I find, that it is a health care institution within the meaning of Section 2(14) of the Act. The complaint alleges, Respondents admit, and I 1 All dates are in 1981 unless otherwise stated. " By agreement, the parties incorporated into the record before me the transcript of the proceedings held in the United States District Court for the Southern District of New York on a petition for an injunction brought by the Regional Director under Sec. 10(1) of the Act. Silverman v. 40-41 Really Associates (unreported). " The essential facts, as opposed to inferences and conclusions to be reached therefrom, either have been stipulated to by the parties or are not seriously disputed find that the Union is a labor organization within the meaning of Section 2(5) of the Act. IL THE ALLEGED UNFAIR LABOR PRACTICES The Union has been the certified bargaining represent- ative of Respondent Dental Facility's unit employees4 since December 8, 1975, and thereafter the parties have had three collective-bargaining agreements, the most recent one expiring on January 1, 1981. Negotiations for a new agreement began in November 1980, and in fur- therance of its bargaining demands tli,e Union com- menced a strike, together with picketing as more fully described below, on February 2, 1981. Respondent Dental Facility is located on the second floor of the building. The only other tenant on that floor is the Health and Hospital Corporation, which is a major tenant occupying over half the space on various floors of the building. These two tenants are located on opposite ends of the floor and separated from each other by a hallway that has two turns and three doors. The en- trance to the Dental Facility is at the far end of the hall- way, which is about 7-1/2 feet wide, and immediately opposite a bank of four elevators. The second floor con- sists of 21,000 square feet according to the testimony of Issac Kugel, the Landlord's agent since December 1980. There are two additional elevators located near that end of the hall where the Health and Hospital Corporation is located for use by this tenant, although its employees may also use the elevators near the Dental Facility as well. As noted, picketing, which began on February 2, was confined to the West 41st entrance to the building, 5 and was conducted Mondays through Saturdays from about 8:30 a.m. until 5 p.m. (4 p.m. on Saturday). The building itself has a frontage of 80 feet on West 41st street and there-are two doors at this entrance, each one measuring 38 inches in width. However, one of the doors constant- ly is locked. Initially, there were 8-10 pickets each day, but the number diminished to 4-6 at any one time during the course of the strike. There is no evidence of any physical violence on the picket line, although there were instances of verbal abuse and harassment directed towards management, striker re- placements, and patients of the Dental Clinic. This took the form of insults and warnings not to patronize the Dental Facility. Complaints regarding this behavior were made to the New York City Police Department by the Dental Facility and, as a result, wooden barricades were established a few feet from the entrance door behind which the pickets were required to stand. Thereafter, the complaints ceased and, according to Sergeant Truebert of the Police Department, the picketing was orderly. According to Dr. Paul Cohen, about 10,000 patients are treated in a year, of which number about 90 percent have some form of insurance coverage through a union paid or sponsored dental plan or Blue Cross-Blue Shield. 4 The unit consists of approximately 20-24 dental assistants, X-ray as- sistants, hygienists, and clerical employees. 5 There is another entrance on 40th Street used exclusively by the Health and Hospital Corporation that was not picketed after the Union was advised of this fact 210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Although not entirely clear from the record, it appears that most of those patients with insurance coverage are union-represented workers who enjoy this protection as a result of union membership or as a union-negotiated benefit. Some of the claims are processed directly with a union as a self-insurer and others through an independent insurance carrier. The overwhelming number of patients are seen by appointment but, according to Carmen Bois- seau, dental assistant, approximatly five walk-in emergen- cy cases are seen daily. 8 The dental practice is devoted mainly to prosthetics, i.e., replacement of missing teeth, with such patients averaging four to five visits at weekly intervals. In an effort to enlist support for the strike, H. Clifford Wilson, the Union's business manager, requested various unions to advise their members of the strike and to exert pressure to secure a settlement of the contract. In turn, in April, five unions 7 wrote to Dr. Cohen stating gener- ally that he should cease his antiunion tactics, i.e., by not negotiating in good faith, and warning that if he did not sign a contract their members would be urged to cease patroni2ing the clinic. Whether members were so re- quested is not a matter of record evidence. As alluded to above, the pickets also sought to com- municate their message directly to patients at the picket line. 8 However, not all pickets necessarily knew who, among those entering the building, were patients. For ex- ample, Jessie Pollock, a clinical employee and a picket, had no patient contact in the course of her job duties. Nor is there evidence to suggest that other employee pickets, let alone nonemployee pickets (e.g., Wilson), conceivably could distinguish patients from other mem- bers of the general public as they entered or left the building. In the absence of clear and reliable evidence to the contrary, I fmd that the pickets on the sidewalk could not reasonably be expected to know, and did not know, in any substantial number, those persons intending to visit, or who had visited, the Dental Facility.8 Consequently, pickets would at times question individ- uals at the building entrance regarding the purpose of their visit. If a person admitted to visiting the Dental Fa- cility they were told of the strike, asked to withhold 6 Whether these patients are covered by insurance or pay directly is not known 7 Service Employees International Union, AFL-CIO, CLC (SEIU), International Union of Operating Engineers Local Union No 94-94A- 94B; Cemetery Workers and Greens Attendants Union, Local 365, Com- munications Workers of America, Local 1180, and Local 382 SEIU. This does not represent all the unions whose members use the Dental Facility with insurance coverage. Dr. Cohen testified that he had patients cov- ered by other union insurance plans and that other unions also wrote to him. However, these "other unions" are not identified in the record. Reference is made to the remarks, at times loud and abusive, by pick- ets to those entering the building. On at least one occasion a picket made ugly and vile reference to Dr Cohen's religion but Wilson testified he reprimanded that picket and such conduct was not repeated Moreover, according to Boisseau, about five patients a day work in the building for the Health and Hospital Corporation. These patients may not even have been aware of the picketing if they only used the 40th Street entrance. 9 Testimony of Boisseau that she treated, and knew, some 20 patients a day is the only evidence remotely suggesting that employee pickets might have been able to spot a patient entering the building. However, this evi- dence is tenuous and insubstantial and does not take into account how many of the patients previously treated by her still were patients at the time of the strike. their patronage, and handed leaflets describing the Union's cause. However, there is no doubt, as confirmed by Wilson, that the ability of the Union to so communi- cate was dependent to a large degree on the willingness of a patient to make that self-identification and stand still long enough to hear or receive the spoken or written message. At 8:30 a.m., February 25, Wilson informed Kugel (the Landlord's agent) that the Union intended to commence picketing on the second floor of the building at the en- trance to the Dental Facility, and gave Kugel a copy of a court decision," which he claimed upheld his right to engage in such conduct. At 9:30 a.m. Wilson and Pollock went to the second floor of the building carrying picket signs measuring 14-1/2 x 22 inches. 11 Wilson stood on one side of the 36-inch door to the clinic, while Pollock stood on the other side. Arthur Brody, the business ad- ministrator of the Dental Facility, telephoned Dr. Cohen and informed him of the picketing. Cohen advised Brody to call the police and Landlord (Kugel) and have the pickets removed. 12 According to Dr. Cohen's testimony, the removal of the pickets was necessary for business reasons. He feared that the outbursts that occurred out- side the building would be repeated on the second floor and that this would be detrimental to patients who would be leaving the clinic in drugged and traumatized conditions. Additionally, he feared that the picketing would disturb patients in the reception area awaiting treatment since the doors to the clinic are kept open and any noise in the hallway would be heard in the clinic waiting room. He further testified that he posted notices in the clinic regarding the strike and the Dental Facili- ty's position on it. According to Police Sgt. Treubert's testimony he ar- rived on the scene at 11:10 a.m., met Kugel and Brody, and was informed by them to remove the pickets.13 Treubert told Wilson and Pollack that they were tres- passing and would have to leave immediately or else sub- ject themselves to arrest on Kugel's complaint for tres- passing. The pickets then departed. Sgt. Treubert testi- fied that there were no disturbances on the second floor when he arrived. Similarly, Kugel testified that he had not received any complaints regarding the second floor picketing, although he had, in fact, received complaints regarding the sidewalk picketing. There is nothing to suggest that the picketing on the second floor was any- thing but orderly and peaceful. Discussion and Analysis The General Counsel alleges that Respondents violat- ed Section 8(a)(1) of the Act by threatening to arrest pickets as trespassers 14 and for peacefully picketing in " Seattle-First National Bank v NLRB, 651 F 2d 1272 (9th C'Ir 1980). 1 ' The picket signs recited that employees of Dental Facility repre- sented by the Union were on strike. 72 Kugel and Brody are admitted agents of their respective principals 73 Actually Brody made the request and Kugel adopted it in accord- ance with the wishes of the tenant 74 See Superior Sanitation, 234 NLRB 454 (1978); Chrysler Corp., 232 NLRB 466 (1977); Payless, 162 NLRB 872 (1967). 40-41 REALTY ASSOCIATES 211 support of employees striking the Dental Facility for a new contract, when the picketing occurred at the en- trance to the Dental Facility, located on the second floor of a multistory office building. The General Counsel urges even though such picketing was conducted on pri- vate property, it was permitted by the Act because, under all the circumstances, that is, when the pickets ef- fectively could identify and reach the intended audience, i.e., patients and suppliers of the Dental Facility and non- striking employees. In support of these contentions the General Counsel relies on Hudgens v. NLRB, 424 U.S. 507 (1976), remanded 230 NLRB 414 (1977), and Seattle- First National Bank v. NLRB, 651 F.2d 1272 (9th Cir. 1980), enfg. in pertinent part 243 NLRB 898 (1979). I find these cases controlling here. In Hudgens, supra, the Court and the Board acknowl- edged the rights of a property owner to control activity on its property, but struck a balance between the proper- ty rights of a shopping center owner and the Section 7 rights enjoyed by economic sinkers to picket their em- ployer located within the center. The balance was struck on the side of the pickets for a number of reasons. First, the potential customers of the store were not identifiable by the pickets at the entrance to the center itself. Second, access to the nonstriking employees was greater at the store entrance." Third, the walkways to the mall were open to the public during business hours and as such were equivalent to sidewalks, access to which could not be denied solely because members of the public car- ried picket signs. Further, it was found that the shopping center owner was a proper Respondent in the proceeding because he received revenue from the stores that leased space, and he had a duty to maintain comfort, cleanliness, and secu- rity in the mall area; thus he was an agent for the shop- keepers who leased- their locations from him According- ly, it was held that the shopping center owner was an employer, that the Section 7 rights of the pickets out- weighed the private property rights of such employer, and that this balance was struck "with as little destruc- tion of one [right] as is consistent with the maintenance of the other." Hudgens v. NLRB, 424 U.S. at 522, citing NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1965). In Seattle-First National Bank, supra, a case more anal- ogous to the one at bar, the Ninth Circuit Court of Ap- peals found that picketers of a restaurant had a Section 7 right to picket at street level and at the restaurant's en- trance, which was located on the 46th floor of a 50-story office building. 16 In addition to housing the restaurant, the 46th floor was also leased by a stock brokerage firm and served as a stopover transfer point for the public, where they changed elevators in order to reach the upper levels of the building. Both the Board and Court reasoned that the peaceful solicitation and distribution that occurred on the 46th floor lobby, and that did not seriously impede the use of olher facilities on the floor, " The strikers were not employed at the store but rather at a ware- house located elsewhere, 16 As in the case at bar, the picketing in Seattle was conducted in sup- port of a stnke for a new contract, and pickets included employees and nonemployees. was a protected form of picketing. They noted that po- tential customers and nonstriking employees were not readily identifiable at the street level, and restricting the picketing to the street level entrance would not allow for an immediate and direct confrontation between the pick- ets on the one hand, and customers and nonstriking em- ployees on the other, thereby preventing the union from realizing the maximum effect of its picket line, to which it was lawfully entitled. On the bases of these established precedents, see also Holland Rantos Co., 234 NLRB 726 (1978), enfd. 583 F.2d 100 (3d Cir. 1978), I conclude that the picketing conducted in the public area of the second floor lobby, outside the Dental Facility, was lawful protected activity and, therefore, Respondents' attempts to arrest the pick- ets was violative of Section 8(a)(1) of the Act. 17 Thus, it is undisputed the picketing on the second floor was peaceful, free of disruptive tactics, and conducted with- out incident by only two pickets who did not block in- gress or egress from the Dental Facility. Additionally, and most important, is my conclusion that the patients of the Dental Facility were not readily identifiable at the street level and could not be confronted there by the pickets. As set forth in my findings of fact, the picketers had little opportunity to discuss the dispute with patients unless visitors to the building were willing to identify themselves as such. Hudgens and Seattle are firm in their holdings that during an economic strike a union has a statutory right to conduct its picketing in a manner that will permit its message to be imparted effectively, and this right will not be diminished absent compelling rea- sons. Respondents contend, however, that the law regard- ing picketing inside a multistory office building is unset- tled, and attempt to distinguish Hudgens and Seattle from the case at bar on a number of grounds. Respondents urge that, unlike the targeted audience in Hudgens, i.e., shoppers who may not even know of their intent to enter a store until the second before they do so, the patients in the instant case (the targeted audience) are there usually by scheduled appointment and thus identifiable when they enter the building. What is significant, however, is not whether the audience is of a mind to receive the message, but rather the ability of the pickets to commu- nicate it. Effective communication here requires that the pickets be able to spot the audience and not the other way around. Although the patient knows the purpose of her visit to the building, the pickets may not know who is a patient because of the mass of people visiting the building. Further, some of the patients work in the build- ing for the Health and Hospital Corporation, and the picketer's message would be lost on these people entirely if they used the 40th Street entrance to enter the build- ing, or might be forgotten by the time of their appoint- ment, even if they entered at 41st Street. Finally, it should be emphasized that in all cases, absent some overriding consideration not present here, the pickets have a right during the bargaining dispute to 17 Both the Dental Facility and the Landlord are liable for this viola- tion because Kugel testified that he wanted what his tenant wanted and the Landlord joined in the request to the police to remove the pickets. 212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD impart their message to patients, suppliers, and nonstrik- ing employees at the point of maximum impact, namely, at the entrance to the struck premises where there is no turning back for those who might be inclined to honor a picket line. We are instructed by experience that remote- ness, measured by time or place, shields the conscience from difficult choices, and it is the recognition of this r condition that is a factor in striking the balance in favor of permitting employees to engage in lawful economic picketing at the entrance to the struck employer in order /that the union "implement its Section 7 rights effective- Ay." Seattle-First National Bank v. NLRB, 651 F.2d at 1276. For there is no doubt that "the farther the message is removed from the point at which action is to be taken the greater the potential for dilution of total loss of effect." Hudgens v. NLRB, 501 F.2d 161, 169 (5th Cir. 1974), revd. on other grounds 424 U.S. 507 (1976). See also Hughes v. Superior Court, 339 U.S. 460 (1950), "the very purpose of a picket line is to exert influence, and it produces consequences, different from other modes of communication. The loyalties and responses evoked and exacted by picket lines are unlike those flowing from ap- peals by printed word." Id. at 465. Thus, although we may accept that a dentist is prompted by different con- cerns than a visit to a shoe store or restaurant, and may be arranged for in a different way, it is not acceptable, in my view, to accord these differences any legal signifi- cance in deciding the Section 7 rights of the employees of such establishments. The second distinction urged by Respondents is that in Hudgeus the union had no viable alternative but to picket in the mall because the nearest public area was 500 feet away from the store involved in the dispute but here the public sidewalk is only two floors away and the pickets message will be remembered during this short journey. For the reasons above, this factual distinction, if indeed the second floor is less than 500 feet away from the side- walk, also is without legal significance. Similarly without merit is Respondents' assertion that a shopping mall is an area for social gatherings while an office building is not. Whether that is the case, I fail to see its application to the issues here. Finally, Respondents seek to distinguish Hudgens on the ground that the landlord there was not a neutral by- stander as he received a percentage of the revenues from his leaseholds, while the Landlord in the instant case did not. Therefore, it is claimed, his property rights are para- mount to the Section 7 rights of the unionized employ- ees. Although the Landlord here does not have the same financial interest as in Hudgens, neither is he neutral. Not only was the Landlord, Kugel, interested in protecting the security of his tenants, he invited himself into the dis- pute and assumed the coloration of the Dental Facility when Kugel told the police that he wanted what his tenant wanted and that he would file a complaint for trespass if the pickets did not leave. Holland Rantos Co., 234 NLRB at 735. Furthermore, the Landlord's invita- tion to the public to use the second floor as an Incident to visiting the Dental Facility requires that he justify the exclusion of the pickets by more than a mere wish to sat- isfy his tenant. Nothing in this record suggests a demon- strable basis for concluding that the picketing on the second floor would "substantially injure" its property, a prerequisite to forbidding such picketing. Seattle-First National Bank v. NLRB, 651 F.2d at 1275. Accordingly, I find Respondents' attempts to distin- guish Hudgens from the case at bar unconvincing. Re- spondents' attempts to distinguish Seattle from the instant case are equally insubstantial. Respondents argue that the court in Seattle-First placed emphasis on the fact that the union there was unable to identify its intended audience at the street level because most of the restaurant's clients worked inside the building and might decide to lunch there on an impulse. Therefore, these potential customers would not consider themselves targets of the picketing. The facts of the in- stant case, Respondents urge, are significantly different and require a different result. Thus, it is noted the Dental Facility is the only one in the building; patients visit the building with the intent of seeing the dentist and often revisit the clinic a number of times in ensuing weeks; and 90 percent of the patients belong to unions that are aware of the dispute and can communicate this informa- tion to their membership. Thus, by knowing and being able to contact its targeted audience, the Union has alter- native means of communicating its message that render second floor picketing unnecessary. Although it is true that some percentage of the clinic's patients are themselves members of other unions, the fact that many are not immediately invalidates the contention that there even exists an alternative means of communi- cation that the Union is required to use in lieu of its right to picket. Moreover, based on the authorities cited above, there is no warrant for holding that the Union must forgo or dilute its most potent weapon and under- take instead a clearly less effective and costly publicity campaign to publicize its contract dispute. In addition, Respondents' arguments overlook entirely the statutory right of the Union to reach nonstriking employees and suppliers, two groups that it is not even claimed are reachable through other means. The other aspect of this defense (that patients are identifiable at the street level and thus can be communicated with there) already has been rejected. Consequently, I find that the Union did not have such special access to its potential audience that it lost its entitlement to engage in the private property picketing here in issue." The second major distinction espoused by Respondent is that Seattle involved a restaurant whereas the case at bar involves a health care facility. Respondents reason that the special nature of the medical services coupled with the privacy interest of patients leaving the facility in pain, militate against allowing picketing, which might become rowdy, on the second floor. The Dental Facility, 18 Although Respondent states that many of the patients are repeat customers, hence their identity is known to the striking employees, I find the testimony to indicate the contrary The clinic services approximately 10,000 patients annually and it is unlikely the employees are able to rec- ogruze each one of them. Additionally, although patients often make con- secutive weekly appointments, amid the vast streams of people that enter the office building each day, it is improbable that the picketers would recogruze them Furthermore, not all the picketers have contact with pa- tients Pollack testified that she is a bookkeeper on the 18th floor and is only called down to the second floor in emergency situations 40-41 REALTY ASSOCIATES 213 it is urged, simulates a hospital setting and is entitled to greater protection than a restaurant. This argument fails for several reasons. First, the occa- sional outbursts by the street level picketers do not war- rant an inference that the picketing on the second floor, which concededly was peaceful, would have become unruly. Respondents are in the posture of seeking to re- strain prospective unlawful practices not found by the Board; 19 speculation is not a substitute for evidence. Not only does the record fail to show that the second floor picketing would in any way create a disturbance, but the other second floor tenant did not even register a com- plaint with the Landlord to restrain this picketing. Concurring the defenses relating to the privacy inter- ests of patients and the alleged hospital-like setting, Re- , spondents offer no authority to support its defense that the picketing at the Dental Facility's entrance should be forbidden, and I know of none. In the first place, I am not persuaded that the Dental Facility here can be lik- ened to a hospital with its full range of inpatient care services. To hold that Seattle is not controlling because it involved a restaurant would unduly restrict the Section 7 rights of employees without guiding precedent. There is no showing that the fleeting contact a picket would have with a patient at the doorway would be detrimental to the patient, and indeed such contact is not any different than what would occur between a picket and a patient on a street at the doorway entrance to a hospital. In nei- ther case is the picket inside the health care facility and patients in both situations will be subjected to an immedi- ate and direct appeal by pickets. Respondents object, however, to the stationing of pickets on the second floor because it would facilitate direct appeals to patients "trapped in the small hallway while waiting for an eleva- tor." 2° But this ability to reach patrons of a struck em- ployer and to forcefully urge them, as well as nonstrik- ing employees and suppliers, to cease their patronage, precisely is sanctioned by law, and the Dental Facility, no less than any other employer, must endure such strike effects. The inconvenience that possibly may be caused to patients,21 by far is outweighed by congressional pro- '9 Seattle-First National Bank v. NLRB, 651 Fid at 1278 (Fletcher, concurring and dissenting). 20 R. Br 14 25 Respondents' assertion that the hallway picketing would be con- ducted in a disruptive manner by angry and frustrated pickets who would force their message on "drugged or traumatized" patients (Br 14) is wholly record support Moreover, it is an argument, if it be made at all, that more properly deals with the conduct of pickets and not the legality of the picketing. As such, it raises issues extraneous to this case Similarly without merit is the suggestion that the legality of the hallway picketing should be adjudicated as if it occurred inside the Dental Facility itself. tection to picketing as a concomitant of an economic strike, the very purpose of which is to halt the operation of the stuck employer. Steelworkers v. NLRB, 376 U.S. 492 (1964). Respondents' remaining "distinctions" between the in- stant case and Seattle are so picayune or speculative that they fall of their own weight. For example, it is claimed the buildings are of different heights and in different types of neighborhoods; the public at large visits a den- tist; there is a fire exit on the second floor that "might be compromised"; and because there are fewer patrons of the Dental Facility than of the restaurant they therefore can be reached by sidewalk pickets. None of these addi- tional arguments, even if there were a factual underpin- ning for them, can nullify the Union's right to picket in the public area of the second floor adjacent to the en- trance to the Dental Facility. On the facts of the record before me, it is my conclu- sion that the legal principles discussed above cloaked the picketing at issue with statutory protection, and both Re- spondents violated Section 8(a)(1) of the Act when they interfered with that right in the manner found. CONCLUSIONS OF LAW 1. Respondent 40-41 Realty Associates, Inc.; and Re- spondent Drs. Paul Cohen and Julius Berkowitz are em- ployers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Dental Union, Local 38-A, SEIU, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening to cause the arrest of individuals to prevent them from engaging in the protected activity of picketing in support of an economic strike against the Dental Facility at its entrance located on the second floor of a building at 230 West 41st Street, New York, New York, Respondents violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondents have engaged in an unfair labor practice, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. [Recommended Order omitted from publication.]