Sahara Tahoe Hotel

812 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Sahara Tahoe Corporation d/b/a Sahara Tahoe Hotel and Hotel, Motel, Restaurant Employees and Bartenders Union, Local 86, Hotel Employ ees and Restaurant Employees International Union, AFL-CIO Cases 32-CA-4155 and 32- CA-4308 January 31, 1989 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On November 30, 1982, Administrative Law Judge David G Heilbrun issued the attached deci- sion The Respondent filed exceptions and a sup- porting beef, and the General Counsel resubmitted the brief previously submitted to the judge 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, 2 and conclusions as modified and to adopt the rec ommended Order as modified The Respondent operates a hotel and casino in Nevada situated on about 20 acres of property and employing 1900 employees The Respondent's building complex faces a highway and is surround- ed on the sides and back by paved parking areas There are four vehicle entrances or exits from the front of the Respondent's facility to the highway, and there are two additional entrances from an access road in the back Other similar hotels are lo- cated next to and across from the Respondent's property The Union represents two units of the Respond ent's employees-service employees and bar and culinary employees The service employees unit, involved in this case, consists of about 290 employ- ees The Respondent unlawfully withdrew recogni- tion from the Union as the representative of the service employees unit in December 1976 This led to litigation culminating in the court of appeals en- forcing, on November 28, 1980, a Board Order re- i The Respondent has excepted to the judge s refection of R Exh 5 a copy of the collective bargaining agreement covering the bar and cult nary employee unit We agree with the Respondent that this agreement is relevant to this case and we reverse the judge and admit R Exh 5 into evidence 2 The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings quiring the Respondent to bargain with the Union 3 Following the court's decision, the Union deter- mined that because of the hiatus occasioned by the litigation it was necessary to make fresh contact with unit employees A list of employees' names and addresses was obtained from the Respondent around July 1981 and used to publicize a prenego- tiation meeting of unit employees The Union at tributed the poor turnout at that meeting to the al- leged inaccuracy of the address list and the lack of residential mail delivery in the Lake Tahoe vicmi ty Because the Union felt that its mailing had not been received by many of the service employees, it decided that it was necessary to distribute its litera- ture to these employees in person Thus, on No- vember 15, 1981, Union International Trustee Con- treras and Business Agent Taylor began distribut- ing union literature in the Respondent's parking lot at the employee entrance at a rear corner of the building complex This literature consisted of the Union's wage proposal and supporting rationale written in English and Spanish According to Con- treras' testimony, it was the practice of Contreras and other union business representatives to have conversations with the people to whom they were distributing literature Two off duty bar and culi nary employees, Guthrie and Pearson, also took part in the distribution of literature After about 20 minutes of this distribution the Respondent's securi ty supervisor, Zajic, told the distributors they would have to leave the Respondent's property or face arrest Contreras argued briefly and then con ceded Zajic made no distinction between employ ee and nonemployee distributors Contreras and Taylor attended a contract bar gaining session the following day at which their ejection from the Respondent's parking lot was dis cussed The Respondent's representatives apolo- gized for the incident and told Contreras and Taylor that it had been a mistake and that they had a right to be there The Respondent's personnel di rector added that, if security guards tried to eject them in the future, they were to tell the guards to contact the personnel director Taylor subsequently carried out similar distribu- tions at the same employee entrance twice in De- cember 1981 and once in January 1982, including one distribution on December 8 or 9 in which em- ployee Stanley took part Although there was a se- curity camera mounted on the wall outside the em ployee entrance that might have enabled the Re- a See Sahara Tahoe Corp v NLRB 648 F 2d 553 (9th Cir 1980) cent denied 451 U S 984 ( 1981) enfg 241 NLRB 106 (1979) 292 NLRB No 86 SAHARA TAHOE HOTEL 813 spondent to observe activity there, the Respondent did not interfere with the distribution of union lit erature on these occasions On February 17, 1982, Business Agent Taylor and bar and culinary employee Hewitt again began to distribute literature to employees arriving at the employee entrance After about 20 minutes, how- ever, the Respondent's security manager, Nagel, told Taylor he would have to stop distributing lit- erature Nagel confiscated the literature that Taylor tried to hand over to Hewitt Nagel then made a citizen's arrest of Taylor for trespassing, after which Taylor was removed by a deputy slier iff, who booked him at the local jail Hewitt, the employee, was permitted to continue distributing what literature she had As set forth in the judge's decision, during the period at issue, the Respondent had rules that pro hibited solicitation for any purpose during working time and prohibited distribution or posting of litera ture for any purpose in any working area The rules further provided that employees violating them would be subject to discipline, including ter mination, and nonemployees violating them would be subject to arrest In his decision, the judge analyzed the scope of the right to engage in union activities on an em ployer's property The judge rejected the Respond- ent's assertion that the Union had alternative means of communicating with the unit employees He fur- ther found insufficient evidence that the distribu- tion caused a littering problem, that employee dis- cipline was affected by it, or that the distribution posed a security problem Accordingly, the judge concluded that the Respondent violated Section 8(a)(1) of the Act by preventing employees and nonemployees from distributing union literature, by arresting the business agent in front of the employ- ee distributor, thereby chilling the latter's exercise of her Section 7 rights, and by confiscating the business agent s literature as he was handing it to the employee distributor We agree with the judge's conclusions, but we find that the Respond ent's interference with the distribution of union lit- erature violated Section 8(a)(1) for the following reasons We address first the Respondent's order halting the distribution of union literature by off-duty em- ployees Guthrie and Pearson on November 15 The Respondent does not contend that its rules on so licitation and distribution, or any of its established rules, barred the activity in which Guthrie and Pearson were engaged Indeed, the Respondent's position is that off duty employees may distribute literature in the Respondent's parking lot, and Se- curity Manager Nagel testified that distribution of literature by off duty employees in the parking lot was, in fact, permitted Moreover, the Respondent has no rule or policy barring off-duty employees from its property and makes no contention that Guthrie and Pearson were not off duty or not rightfully on its property 4 The law governing distribution of union litera ture by employees already rightfully on the em- ployer's property was articulated by the Supreme Court in Republic Aviation Corp v NLRB, 324 U S 793 (1945) See Eastex Inc v NLRB, 437 U S 556, 570-572 (1978), Hudgens v NLRB, 424 US 507, 521 fn 10 (1976) Republic Aviation held that an employer may not prohibit such employees from distributing union literature in nonwork areas during nonwork time without a showing that a ban is necessary to maintain plant discipline or produc tion See also Stoddard-Quirk Mfg Co, 138 NLRB 615 (1962) The Respondent does not attempt to justify its order halting the two employees' distri- bution of union literature on the basis that it was necessary to maintain discipline, production, or cleanliness It contends only that its action is ex cused by its good-faith but mistaken belief that Guthrie and Pearson were not employees This contention is without merit The existence of a violation like the one alleged here does not turn on an employer's motive but rather on wheth- er the employer has engaged in conduct that rea sonably tends to interfere with the free exercise of employee rights under the Act Quality Aluminum Products, 278 NLRB 338 (1986), Hanes Hosiery, 219 NLRB 338 (1975) Accordingly, as the Respond- ent's action violated the two employees' right under Republic Aviation to distribute union litera- ture on nonwork time in nonwork areas, we agree with the judge's conclusion that the Respondent violated Section 8(a)(1) of the Act by prohibiting the two off-duty employees from distributing union literature in the Respondent's parking lot by the employee entrance on November 15, 1981 Regarding the Respondent' s exclusion of nonem- ployee union agents Contreras and Taylor on No- vember 15, 1981, and Taylor on February 17, 1982, we look to the Board's recent decision in Jean Country, 291 NLRB 11 ( 1988) In Jean Country, the Board addressed the question of how to accommo- date the exercise of rights guaranteed under Sec- tion 7 of the Act with a property owner's right to protect his property against intrusions by those whom he has not invited to enter In light of the 4 Because the Respondent concedes that employees Guthrie and Pear son were rightfully on its property and because the Respondent has no rule or policy barring off-duty employees from its property Tn County Medical Center 222 NLRB 1089 (1976) which sets out criteria concern mg the lawfulness of such a rule or policy is not directly applicable here 814 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Board's decision in Fairmont Hotel, 282 NLRB 139 (1986), and subsequent cases, the Board reevaluated the relevance of means of exercising Section 7 rights other than by intrusion on private property and concluded that the availability of reasonable al ternative means is a factor that must be considered in every access case In reaching this conclusion the Board emphasized that, under the Supreme Court's decisions in NLRB v Babcock & Wilcox Co, 351 US 105 (1956), and Hudgens v NLRB, 424 U S 507 (1976), the Board is "charged with seeking to avoid the 'destruction' of [Sec 7 and property] rights, if at all possible, and with permit- ting infringements on one right only to the extent necessary to maintain the other " Jean Country, supra at 12-13 After reviewing Babcock and Hud- gens, the Board in Jean Country further concluded [I]n all access cases our essential concern will be the degree of impairment of the Section 7 right if access should be denied, as it balances against the degree of impairment of the private property right if access should be granted We view the consideration of the availability of reasonably effective alternative means as espe- cially significant in this balancing process Jean Country, supra at 14 The Board also set forth factors that may be relevant to assessing the prop erty right, the Section 7 right, and alternative means in each case The Board additionally noted that there is an initial burden on the party claiming the property right to show that it has an interest in the property and what its interest in the property is Applying the Jean Country analysis to the facts of this case, we examine first whether it has been shown that the Respondent has an interest in the property at issue As noted above, the Respondent operates a hotel and casino, consisting of a building complex and surrounding parking lot on three sides, located on a 20 acre tract of land The record does not establish whether the Respondent's interest in the property is a fee simple or a lease hold The record, however, does include an aerial photograph of the Respondent's premises with the boundaries of the Respondent's property drawn on it by the Respondent's chief engineer Moreover, it is clear from the record that the Respondent exerts control over the entire premises, and the Respond- ent's representatives, the Union's representatives, and the employees considered the Respondent's building complex and surrounding parking lot to be the Respondent's property Indeed, there is no con- tention to the contrary Accordingly, we conclude that the Respondent possessed a property interest in its building complex and surrounding parking lot Considering the factors relevant to assessing the weight of the Respondent's property right, we con clude that the Respondent's property interest in the parking lot area outside the Respondent's employee entrance is relatively modest The employee en trance is situated at a rear corner of the complex some distance from the customer entrances and the parking areas normally used by customers This en- trance is used principally by employees and is adja- cent to the employee parking area The sign above the entrance says "Personnel Office" as well as "Employees Entrance," however, so it is apparent that members of the public applying for jobs may also use this entrance Additionally, the perimeter of the Respondent's premises is not fenced Some employees who commute by bus proceed from the bus stop to the Respondent's employee entrance by cutting across the parking lot of the adjacent casino, into the Respondent's parking lot, and across it to the employee entrance Individuals, whether employees, customers, or strangers, may walk or drive into the parking lot and walk up to the employee entrance The parking lot area out side the Respondent's employee entrance is not particularly private or exclusive Although it is not an area where customers would be expected to park, there is nothing preventing them from doing so, and it is apparent that individuals who have no prior relationship with the Respondent park in or walk through this area of the Respondent's parking lot when applying for jobs at the Respondent's per- sonnel office The Respondent's property interest in this park- ing lot area is even weaker regarding the nonem- ployee union agents who represented its employees than it is regarding the public in general On the day after the November 15 incident, in which Con treras and Taylor had been ejected while handbill- ing at the employee entrance, the Respondent's representatives apologized and told them that they had a right to do what they had been doing, their ejection had been a mistake, and if security agents tried to eject them again, they should tell the agents to call the Respondent's personnel director Taylor subsequently engaged in handbilling at this entrance on three additional occasions without in- terference prior to the February 17 incident Ac- cordingly, the Respondent, through its words and actions, essentially acknowledges that it had little, if any, property interest at least regarding the pres- SAHARA TAHOE HOTEL 815 ence of the nonemployee union agents at that loca- tion 5 Applying the factors set forth in Jean Country relevant to consideration of a Section 7 rights, we conclude that the Section 7 right at issue here is best described as a representational right The Union was attempting to reestablish contact with the Respondent's service employees, inform them of the collective-bargaining proposal that the Union was making on their behalf, and solicit em- ployee input and questions concerning the propos- al The right of employees under Section 7 of the Act to "bargain collectively through represents tives of their own choosing" is one of the essential rights protected by the Act Inherent in this right is the right of employees and their representatives to communicate with each other concerning subjects of bargaining, as this communication is essential to effectuate the right of employees to bargain through their representatives Accordingly, the right of a union to establish communications with the employees it represents and inform them about proposed contract terms that would cover those employees and seek employee input and questions regarding the contract negotiations is a fundamen- tal Section 7 right With respect to other factors set forth in Jean Country as relevant to assessing the relative weight of the Union's protected conduct, we note that the employer to which this Section 7 right was directly related was the Respondent, as it was the Respond- ent with which the Union was bargaining, and it was the Respondent's employees on whose behalf the Union was bargaining Also, the audience to which the Union's communications were directed was the Respondent's service employees, and, as the judge found, the manner in which the Union's distribution of literature was carried out on the Re- spondent's property was nondisruptive In sum, 5 We find no merit in the Respondents argument that it had a strong property interest in excluding Contreras and Taylor to maintain security As representatives of the bar and culinary unit employees Contreras and Taylor had a right under that unit s collective bargaining agreement to be present in the Respondent s facility for grievance related activities and Contreras testified that he made about three visits there a week Thus Contreras at least was not a stranger to the Respondent and he and Taylor had a contractual right to enter the Respondents premises for certain purposes (although not for the purpose of passing out handbills) Additionally the Respondent employed about 1900 employees and was patronized by at least 2000 customers per day Although it is apparent that as a casino operator the Respondent had security concerns it neces sanly was prepared to deal with a large number of customers and other strangers along with the employees on its premises each day In this regard it is unlikely that the Respondent s security personnel were able to recognize all 1900 employees Indeed the Respondent contends that on November 15 it mistook the employee distributors for nonemployees In sum we are not persuaded that the presence of two nonemployee union agents handbilling in the parking lot outside the employee entrance significantly affected the Respondent s security concerns Moreover we agree with the judge that there is insufficient evidence of problems with employee discipline or littering these factors, including the situs and manner of the Union's handbilling, do not diminish the strength of the Section 7 right in these circumstances We turn then to the question of the Union's al- ternative means of communicating with its intended audience The Union handbillers' intended audience clearly was the Respondent's service employees The General Counsel argues that the Union did not have available to it the "usual methods of impart- ing information" to these employees, quoting Bab- cock & Wilcox, supra, 351 U S at 113 The Re- spondent argues that numerous methods of commu- nicating with the service unit employees were available to the Union and that the General Coun- sel failed to meet the burden of proving their lack of availability These asserted methods include mailing literature to employees, distributing litera ture to employees from public areas near the hotel and at a bus stop used by employees, visiting the homes of employees, telephoning employees, plac- ing advertisements with radio stations, newspapers, and magazines, and advertising on cab backs, bill- boards, posters, and bumper stickers We find that none of the means of communica- tion asserted by the Respondent would have pro- vided the Union with a reasonable, effective means to communicate its message to its intended audi ence As a general matter, we note that the Union's need to reestablish means of communication with the employees it represented was directly related to the Respondent's unlawful withdrawal of recogni- tion and subsequent refusal to recognize the Union as the representative of the Respondent's service employees for a 4-year period Thus, for this entire period the Union was deprived of the status of an incumbent union and the normal channels of com- munication with the unit members that an incum- bent union ordinarily might be expected to have After recognition of the Union finally was rees- tablished, the Respondent provided a mailing list of the unit employees, but the list turned out to be of little help to the Union in renewing contact with the employees The Union demonstrated that com- munication with the employees by mail was inef- fective due to the lack of home mail delivery in the Lake Tahoe area and the apparent inaccuracy of the employee address list In addition, the Union had found that telephoning employees was ineffec- tive because employees often did not answer, they were at work, or they worked at night and took their telephone off the hook during the day when they were trying to sleep Moreover, the Union did not know the telephone numbers of the employees here, and the address lists that the Respondent sup- plied did not include telephone numbers The Re- spondent showed that attempting to gather these 816 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD numbers from the telephone directory, as the Re- spondent had five of its clerical employees do, was a laborious and time-consuming task that yielded telephone numbers for only about one-sixth of the employees-' Additionally, because most of the em- ployees' addresses were post office boxes or gener- al delivery and did not give street addresses, the Union could not attempt to contact the employees in person at their homes. Regarding advertising in newspapers, magazines, and on radio, Jean Country indicated that generally we will not find such means of communication to provide feasible alternatives to direct contact.7 We do not find this case to be the exceptional one where such use of mass media is a feasible alterna- tive, especially because the intended audience of the Union's communication was a discrete group of 290 employees of the Respondent. By the same token, the Respondent's suggestion that advertising on cab backs, billboards, posters, and bumper stick- ers could serve as a reasonably effective alternative means for the Union to communicate with these 290 employees is plainly without merit. The suggestion that the nonemployee union agents could have conducted their handbilling from public property adjacent to the entrances to the Respondent's parking lot and at the public bus stop used by about 30 percent of the Respondent's em- ployees cannot be so easily dismissed. There were six entrances and exits to the Respondent's parking lot, however, and a large volume of customers and nonunit employees entered through them.8 Thus, it 6 To show that obtaining employees ' telephone numbers from the local telephone directory would provide a feasible alternative means for the Union to communicate with the Respondent's service employees, the Re- spondent had five of its clerical employees attempt to locate in the tele- phone directory the telephone numbers of employees whose names ap- peared on lists of the Respondent's bar and culinary unit employees and service unit employees that had been provided to the Union . The Re- spondent introduced an exhibit listing the employees whose names had been located in the telephone directory by this method . The number of bar and culinary employees whose telephone numbers were located is, of course, irrelevant, because it is communication with the service employ- ees only that is at issue. Comparison of the list of employees whose names were located in the telephone directory with the list of employees in the service employees unit alone shows that the names of only about 16.5 percent of the service unit employees (48 out of 290) could be found in the directory. Additionally, even when a name in the telephone direc- tory matches the name of a unit employee , it is not certain that the indi- vidual listed in the directory actually is the employee , rather than some- one else with the same name . This problem is exacerbated by the fact that employees are listed on the Respondent 's personnel lists by initials and last name only. Thus, it is not clear whether, for example , the D. G. Garcia who is employed by the Respondent is the same person as the D. Garcia who is listed in the telephone directory. Accordingly, we con- clude that not only is it time-consuming and cumbersome to attempt to obtain the employees ' telephone numbers from the telephone directory, but also that only a small fraction of the employees ' telephone numbers can be obtained this way and it is uncertain that all the listings found are really those of the employees. 7 Jean Country, above at 13. a The record shows that exits from the parking lot commonly were used as entrances. appears that the vast majority of vehicles entering into or exiting from the Respondent's parking lot were occupied by persons other than members of the service employees' unit, and attempting to dis- tribute handbills to the occupants of entering or ex- iting vehicles would have been a cumbersome and largely ineffective way for the Union to communi- cate with the Respondent's service employees. Similarly, the bus stop in question was used by the public at large, including employees of other hotels and casinos in the area, so it appears that only a small portion of the individuals who could be con- tacted at that bus stop would be employees of the Respondent. Thus, distributing leaflets at the bus stop also would be a cumbersome and ineffective way of reaching even that small percentage of the Respondent's service employees who used that bus stop. Although not asserted by the Respondent, it is also apparent that another potential alternative means for the Union to convey its message was the use of off-duty employees to perform the distribu- tion of handbills at the Respondent's employee en- trance, because off-duty employees did, in fact, engage in this activity with the nonemployee union agents. As discussed above, the Respondent's stated policy was to allow off-duty employees to distrib- ute literature in nonwork areas. Thus, it would seem that distribution by off-duty employees might serve as a reasonable, effective alternative means to distribution by nonemployee union agents. We need not decide in this case, however, under what circumstances such an alternative would be reason- able because when the Respondent excluded non- employee union agents Contreras and Taylor on November 15, it also halted the handbilling activity of the two off-duty employees, and when it ex- cluded Taylor on February 17, it prevented him from turning over his remaining handbills to the off-duty employee who was distributing handbills with him. Thus, as the Respondent interfered with distribution by off-duty employees on both these occasions, distribution by off-duty employees was not an available alternative at the time of the al- leged violations, even though, prospectively, under the Respondent's stated policies, the Respondent may permit similar employee distribution of litera- ture in the future. In any event, we are not examining these assert- ed alternative means of communication in a vacuum. Rather, in determining whether various proffered alternative means are reasonable, we must take into account the Section 7 right and the property right at issue.9 In this case, the Union was 9 As we stated in Jean Country, above at 13. SAHARA TAHOE HOTEL engaged in fundamental representational activity protected by Section 7-communicating with the employees it represented for the purposes of in- forming them about contract negotiations and rees- tablishing contact after a 4-year hiatus On the other hand, the Respondent's property interest in excluding the nonemployee union agents from the parking lot area by the employee entrance was, as found above, relatively insubstantial However we might evaluate the alternatives in other cases, under the particular circumstances here, where the Union's Section 7 right is particularly compelling and the Respondent's property interest is of a lesser weight, we find that these asserted alternatives do not provide reasonable, effective alternative means of communicating the Union's message to its in tended audience Thus, given the importance of the Union's Section 7 activity, these various asserted alternative means for the Union to convey its mes- sage to the employees it represents cannot be deemed adequate As stated in Jean Country, above at 13 Because the Supreme Court in Hudgens indi- cated that there is a "spectrum" of Section 7 rights and private property rights and that the place of a particular right in that spectrum might affect the outcome of a case, we are not free to assume that every Section 7 right is of equal weight when intrusions on private prop- erty are concerned Thus, in cases when a property owner has especially compelling rea- sons for barring access and when the Section 7 right is less central than, for example, the right of employees to organize or to protest unfair labor practices, we may more readily find that means of communication other than those en- tailing entry onto the property in question constitute a reasonable alternative Finally, in accommodating the competing rights, we note that the Board's ultimate concern, as ar ticulated in Jean Country, is the extent of impair- ment of the Section 7 right if access is denied, bal anced against the extent of impairment of the pri vate property right if access is granted In view of our analysis above, it is clear that if the nonem- ployee union agents were denied access to the Re- spondent's parking lot area by the employee en trance for the purpose of distributing handbills to the Respondent's service employees, the Union's Section 7 representational right at issue would suffer a not insubstantial degree of impairment The Union, the exclusive bargaining representative of the Respondent's service employees, would be re- quired to rely on vastly inferior means by which to attempt to communicate with those employees con- 817 cerning contract proposals and to reestablish con- tact with the employees after a 4-year hiatus On the other hand, if the nonemployee union agents were granted access to the Respondent's parking lot to distribute handbills by the employee entrance, the Respondent's private property rights would not suffer any noticeable degree of impair- ment The employee entrance to the Respondent's building complex is a rear entrance away from the areas frequented by customers, and the parking lot area there is open and generally unrestricted Moreover, by its apology to the nonemployee union agents after their first ejection from that area, its statement to them that they had a right to be there, and its subsequent toleration of handbill- ing by Taylor three times at that location, the Re- spondent acknowledged, in effect, that it was little burdened by the presence of the two union agents outside the employee entrance Thus, we find that the degree of impairment of the Union's Section 7 right if the nonemployee union agents were denied access to the Respondent's parking lot to distribute literature by the employee entrance outweighs the degree of impairment of the Respondent's property right if access were granted Accordingly, and in light of all the foregoing, we conclude that the Re- spondent violated Section 8(a)(1) of the Act by ex- cluding Contreras and Taylor from its parking lot on November 15 and Taylor on February 17 We, therefore, shall adopt the judge's recommended Order as modified to conform with our analysis ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent Sahara Tahoe Corporation d/b/a Sahara Tahoe Hotel, Stateline, Nevada, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified 1 Substitute the following for paragraph 1(a) "(a) Preventing or attempting to prevent off-duty employees from distributing union literature in the parking lot outside the employee entrance to the Respondent's facility or at any other nonwork lo- cation or interfering with this distribution " 2 Insert the following as paragraph 1(d) and re letter the subsequent paragraph accordingly "(d) Preventing nonemployee agents of Hotel, Motel, Restaurant Employees and Bartenders Union, Local 86, Hotel Employees and Restaurant Employees International Union, AFL-CIO, from distributing union literature to employees in the Respondent's parking lot close to the employee en- trance to the Respondent's facility, unless the Union has available to it a reasonable, effective al- 818 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ternative means of communicating with the service employees in the bargaining unit it represents." 3. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT prevent or attempt to prevent off- duty employees from distributing union literature in the parking lot outside the employee entrance to our facility or at any other nonwork location or interfering with this distribution. WE WILL NOT confiscate: literature of Hotel, Motel, Restaurant Employees and Bartenders Union, Local 86, Hotel Employees and Restaurant Employees International Union, AFL-CIO, or any other labor organization, that has been or is being distributed to employees in nonwork areas on non- work time. WE WILL NOT cause the arrest of a nonemployee representative of this Union in the presence of any employee because, and while in the process of, the representative's solicitation of our employees and distribution of leaflets to such employees at the em- ployee entrance to this facility, notwithstanding that it is located on company property. WE WILL NOT prevent nonemployee agents of this Union from distributing union literature to em- ployees in our parking lot close to the employee entrance to this facility, unless the Union has avail- able to it a reasonable, effective alternative means of communicating with our service employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the Act. Tahoe Hotel (Respondent) violated Section 8(a)(1) of the Act by interfering with the solicitation of its employees and distribution of leaflets by Hotel, Motel, Restaurant Employees and Bartenders Union, Local 86, Hotel Em- ployees and Restaurant Employees International Union, AFL-CIO (the Union) to such employees as attemptedly carried out by both employee and nonemployee agents of the Union at the employee entrance to the facility, and later interfering with the solicitation of its employees and the distribution of union leaflets by the same persons and in the same manner while contemporaneously caus- ing the arrest of a union agent in the presence of an em- ployee because of this agent's solicitation of employees and distribution of union leaflets to such employees at the employee entrance. On the entire record, my observation of witnesses, and consideration of posthearing briefs , I make the following FINDINGS OF FACT AND RESULTANT CONCLUSIONS OF LAW This case arises at a major resort facility located on approximately 20 acres abreast heavily traveled U.S. Highway 50. Employee Relations Counselor Dick Love estimated there to be 1900 employees overall, with 700 occupied in food and beverage functions and another 290 providing hotel services. There are four labor organiza- tions representing various units of employees, these being Teamsters, Operating Engineers, Musicians, and what is popularly termed "Culinary Union" (the Charging Party).' The physical spread includes a casino, show- room, hotel towers, parking structure, and ground level paved parking that covers about two-thirds of the total area. The premises are so configured that four vehicular entryways are on the highway side, and two additional accesses may be turned into from a rear Loop Road at which point motorists so arriving would be at the far back end of the parking area.2 The Union represents two distinct bargaining units, one the bar and culinary work- ers and the other that of hotel service employees. The second of those described units was the subject of litiga- tion in which, on November 28, 1980, the Ninth Circuit Court of Appeals enforced a Board Order requiring Re- spondent to resume bargaining with the Union for such employees. International trustee Miguel Contreras testified that the culinary unit remains routinely under contract, while such lengthy litigation over the hotel service unit had ne- cessitated fresh contact with employees.3 To this end he SAHARA TAHOE CORPORATION D/B/A SAHARA TAHOE HOTEL Charles A. Askin, for the General Counsel. Gary W. Reid, of Phoenix, Arizona, for the Respondent. DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge. This case was heard on September 16, 1982, at South Lake Tahoe, California, based on a consolidated complaint al- leging that Sahara Tahoe Corporation d/b/a Sahara ' Respondent is a Nevada corporation with an office and place of busi- ness in Stateline, Nevada, where it is engaged in the operation of a hotel, gambling casino , and related facilities, annually deriving gross revenues in excess of $500,000 while purchasing and receiving goods or services valued in excess of $5000, which originated outside Nevada . On these ad- mitted facts I find Respondent to be an employer engaged in commerce within the meaning of Sec. 2(2), (6), and (7) of the Act, and otherwise that the Union is a labor organization within the meaning of Sec. 2(5). 2 The spatial and physical relational characteristics of the facility are well depicted in a group of photographs received into evidence as exhib- its of Respondent. ' The underlying Board case, Sham-Tahoe Hotel, 241 NLRB 106 (1979), set forth unit inclusions such as "housekeeping personnel ; parking lot attendants; front desk employees ; timekeepers ; casino porters; and bellmen," with expectable exclusions. SAHARA TAHOE HOTEL pressed Respondent for a list of employees and their ad dresses A working list was finally obtained around July 1981 and a prenegotiation membership meeting was pub licized Turnout was poor and Contreras blamed this on the obsolete or inaccurate listing of addresses coupled with the fact that in the South Lake vicinity there is no residential mail delivery On November 15, 1981, Contreras appeared at the well marked employee entrance at a rear corner of the complex, accompanied by Business Agent Donald Taylor plus two off duty employees The object of this group was to initiate or improve communication with hotel maids, and they started to carry this out by distribution of the Union's nine page wage proposal and accompany ing rationale punted in either English or Spanish After about 20 minutes of this Security Supervisor Allen Zajic appeared with two uniformed guards, and advised that the distribution taking place was illegal, constituted tres pass, and must cease or the individuals involved would face arrest Contreras argued that it was his right to be there, while Zajic adhered to his ultimatum intimating that it had come from Respondents executive offices Soon Contreras conceded in the situation, influenced as he was by the fact that the next day a bargaining meet ing was scheduled between the parties and he anticipated dealing with the interference in that forum Contreras ex pressly testified that Zajic s edict ran against the activity of distributing at this entrance point , and made no dis tinction about whether those accompanying union repre sentatives were employees of Respondent At the next day s bargaining session the Union was represented by Vincent Sirabella its chief negotiator at the time with Contreras and others also present on his side Respondents chief spokesman then was Las Vegas based Robert Kaufman, and among other employer offs cials were Personnel Director Kathy Collup, plus Attor nev Gary Reid who was new to the negotiations Con treras recalled that in the course of this meeting Re spondent s representatives extended an apology for the previous day s incident and retracted any contention that activity that had occurred would be again challenged As further recalled by Contreras this ameliorating em ployer position was enlarged on by Collup, who told the union representatives that should any repetition occur the security personnel should be advised to contact her Following this Contreras became headquartered at Reno Nevada in carrying out his trusteeship duties and Taylor succeeded to the role of chief revitalizer for the hotel service unit Taylor recalled making similar formal distributions at this employee entrance on three further occasions without interference However, another con frontation occurred on February 17 1982, and it consti tutes the second of two incidents that allegations of this case address On this occasion Taylor was present with employee Audrey Hewitt, a restaurant food server of 12 years service with Respondent, to distribute literature among arriving employees at their same customary point of entering the building After 20 minutes had passed Re spondent s security manager, Clarence (Homer) Nagel, appeared along with Zajic Nagel requested that Taylor cease his activity, and following a brief argument of the point Taylor handed undistributed literature to Hewitt 819 preparatory to departure Nagel intercepted the material, stating it was needed for evidence, and carried out a cite zen s arrest of Taylor for trespassing on private property contrary to applicable Nevada law Taylor was there upon removed in the presence of Hewitt by a deputy sheriff and booked at the local jail No interference was attempted regarding Hewitt, who remained free at all times to continue her phase of the distributional activity The rules at issue, as respectively in written effect during November 1981 and February 1982, read as fol lows NO SOLICITATION AND DISTRIBUTION POLICY It is the policy of Del Webb Hotels, Inc to strictly prohibit solicitation for any purpose during working time in any area of its hotels and Casinos and distribution or posting of any literature for any purpose in any working area of its hotels and Casi nos This policy does not apply to breakperiods mealtimes or other non work periods Employees violating the above policies will be subject to discipline up to and including termina tion Non employees violating the above policies may be subject to arrest for unauthorized trespass The following No Solicitation' rule applies to all employees and visitors, while on our premises It is the policy of Del Webb Hotels, Inc to strictly prohibit solicitation for any purpose during working time in any area of its hotels and casinos and distribution or posting of any litera ture for any purpose in any working area of its hotels and casinos Employees violating the above policies will be subject to discipline up to and including termina tion Non employees violating the above policies may be subject to arrest for unauthorized tres pass Any exceptions to the above rules are as pro vided in the applicable Collective Bargaining Agreements Nagel testified that the earlier rule had traditionally been enforced against nonemployee distributors of literature in cases when their activity occurred on the premises where trespass could be claimed Associated with this is the testimony of Zajic that the confrontation of Novem ber 15, 1981, gives Respondent s agents no basis to know or reasonably believe that persons accompanying Con treras were in fact employees of Respondent Attorney Reid testified in further reference to this point, recalling that on November 16, 1981 (where he was present after having joined Respondent s legal staff only about 2 weeks earlier) the apology to the Union was voiced in particular terms of a mistake" having been made about whether a bargaining unit employee had been present the day before with Contreras 820 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The General Counsel contends that Respondent has acted unlawfully by enforcing otherwise valid no-distri- bution rules against nonemployee agents of a labor orga- nization attempting dissemination of informational litera- ture in a nonwork area. Respondent's defense is largely that alternate means of communication to employees were reasonably present, and in this regard it adduced evidence that television and radio advertising, roadside billboards, taxicab backboards, vehicle bumper stickers, and community newspaper notices all represented appro- priate, feasible alternatives to coming on private property for purposes supportive of continuing self-organization by employees. Further, Respondent submitted a locality telephone directory into evidence showing that several hundred employee names (or identification by spouse's name) were listed and could thus be called directly con- cerning objectives of the Union.4 Long-established doctrine in this subject area of the law involving determination of whether Section 7 activi- ty may be exercised on private property, requires a bal- ancing of the legitimate interests of employees to exer- cise protected rights with the legitimate managerial and property interests of the employer. Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945); NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1950); Central Hardware Co. v. NLRB, 407 U.S. 539 (1972). As written in Hudgens v. NLRB, 424 U.S. 507 (1976), quoting Babcock & Wilcox, supra at 112, the basic objective of the Act is the accom- modation of Section 7 rights and private property rights "with as little destruction of one as is consistent with the maintenance of the other." The U.S. Supreme Court has stressed that the Board is to avoid "mechanical answers" in seeking a "solution of this non-mechanical, complex problem in labor-management relations,"5 and from this the Board has recognized that "the formulation of gener- alized rules in this area must be undertaken with caution because . . . differing fact situations call for different ac- commodations."6 In accommodating the relevant inter- ests in each factual setting the Board has given varying weight to factors including the relationship of the indi- vidual engaging in protected acivity with the owner of the property,' the nature of the employer's operations,8 the nature or type of protected activity involved," the location on the property of the exercise of the activity, t 0 4 Taylor had testified that even with an updated employee list of July 1982, the Union's blanket mailings resulted in many returned items (75 out of 300 by mid-September 1982, with approximately a half dozen more accumulating each week on the average). 5 NLRB v. Steelworkers (Nutone, Inc.), 357 U.S. 357 (1958). 9 Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962). ' Republic Aviation, supra (employees); Tri-County Medical Center, 222 NLRB 1089 (1976) (off-duty employees); Babcock & Wilcox, supra (non- employees). 8 Famous-Barr Co., 59 NLRB 976 (1944), enfd. as modified 154 F.2d 533 (8th Cir. 1946), cert. denied 329 U.S. 725 (1946) (retail stores); Beth Israel Hospital v. NLRB, 437 U.S. 438 (1978) (hospitals). 9 Stoddard-Quirk, supra (comparing oral solicitation and literature dis- tribution during union organizing campaign); Seattle-First Natioinal Bank v. NLRB, 651 F .2d 1272 (9th Cir. 1980) (picketing in support of econom- ic strike). See also Giant Food Markets v. NLRB, 633 F.2d 18 (6th Cir. 1980) (area standards picketing). '' Stoddard-Quirk, supra (working areas versus nonworking areas); Marshall Field & Co., 98 NLRB 88 (1951 ), enfd . in part and modified in part, 200 F.2d 375 (7th Cir. 1952) (public selling areas distinguished from public nonselling areas). the right of the individual to be on the employer's prop- erty exclusive of rights under the Act,"' and the impact of the protected activity on production, discipline, and plant cleanliness.' 2 The balancing test was first formulated respecting the right of employees to engage in union solicitation on their employer's premises. Peyton Packing Co., 49 NLRB 828 (1943), enfd. 142 F.2d 1009 (5th Cir. 1944), cert. denied 323 U.S. 730 (1944). Because employees are "al- ready rightfully on the employer's property" pursuant to their work relationship, the employer's interest in con- trolling access to its property was not involved. Hudgens, supra at 521 fn. 10. However, the Board's consideration of rights of nonemployees who seek to engage in pro- tected activity on private property similarly reflects bal- ancing a variety of factors. While Hudgens teaches that the activity of employees rightfully on their employer's property does not affect property rights, access by non- employees to private property generally requires accom- modation of Section 7 rights with the employer's proper- ty interests as well as any lesser impact on its managerial concerns. That accommodation involves an assessment of the "nature and strength" of such property interests and the Section 7 rights. Hudgens, supra at 522. The strength of an employer's property interest varies depending on its intended use. In the context of an indus- trial plant, access by nonemployees would significantly burden a property right, and the accommodation of em- ployee and employer interests involves consideration of the availability of means of effectuating the Section 7 right other than by nonemployee access to such proper- ty. Babcock & Wilcox, supra at 112. The accommodation is different when the nonemployees seek to approach or enter property that is generally open to the public. The fact that property is open to the public is a relevant con- sideration in determining the strength of the property in- terest, and the Board reasonably views an invitation to the general public as a factor that diminishes the burden on the employer's property interests imposed by the ex- ercise of protected activity. Cf. Seattle First National Bank, supra at 1275. However, when the exercise of the protected conduct is not consistent with the general pub- lic's normal use of the property, the Board recognizes that the activity imposes some burden on the employer's property rights. Accordingly, when the nonemployee use of the property is substantially different from that of the public, the Board also considers the availability of effec- tive means of implementing the Section 7 rights. Scott Hudgens, 230 NLRB 414 (1977). Under ordinary circum- stances an employer may prohibit nonemployee distribu- tion of union literature if reasonable efforts through other available channels of communication will enable the labor organization to reach employees. Stoddard- Quirk, supra at 620, 622. Argument may also key to the principle that "relative strengths of the conflicting inter- ests" necessitates subordinating Respondent's property 11 Marshall Field, supra; Seattle First National Bank, supra; Hudgens, supra. 12 Stoddard-Quirk, supra. See S & H Grossinger's, Inc., 156 NLRB 223 (1965), enfd. 372 F.2d 26 (2d Cir. 1967). SAHARA TAHOE HOTEL rights in these circumstances Beth Israel Hospital, supra at 494-495 As a case largely free of factual issues, the focus may immediately be directed to applicable doctrine 13 Re spondent has here developed a record on the multitudi nous steps the Union might have taken in maintaining of fective communication with its hotel service unit mem bers Taken individually or collectively the concrete ap plication of such steps is shown to be uncertain, labon ous, and in some instances inappropriate It is convinc ingly established that home mail delivery in the vicinity is of dubious effectiveness, and with the exception of radio advertising, other media carried a cost factor that the Union not have to bear Respondent has cited Roch ester General Hospital, 234 NLRB 253 (1979) on this point, yet even here the opinion lumped radio, televi sion or newspaper advertising placards, bumper stickers or displays or [street] signs" as undertakings not tried by that labor organization and followed this with comment about not signifying what a union must do I believe the correct approach is not to reason from what theoretical entitlement the Union had in this situation but whether the two actual episodes represented in stances in which union representatives were engaging in permissible conduct 14 In summary there is no property interest that remotely justified the interferences made Alluding to the key notion of whether cleanliness, [or] discipline would be compromised, I find no room for legitimate employer concern about either of these It is undisputed that a trash receptacle was spotted at the employees entrance to which this litigation pertains,15 and Hewitt testified uncontradictedly that Respondent periodically placed no tices, newsletters, and messages to employees on a shelf immediately inside this same employees' entrance There is neither the claim of a littering problem being present nor any indication from the evidence that rudimentary neatness was disturbed by the Union's actions Further, there is no showing that employee discipline was, or could even reasonably have been, affected by placing the described literature in their hands It suffices to point out that the tranquil appearance by union representatives to distribute meaningful written information to these bar gaining unit members did not arguably encroach in any significant way on the employers property rights In briefing this case Respondent alluded to security problems at the hotel and suggested that another possi bility for the Union would have been to handbill at driveways There was no support advanced for the prop 13 On demeanor grounds I credit both Contreras and Taylor in finding that when the parties met in their negotiating session of November 16 1981 there was no reference to the employers retraction as applying only with respect to nonemployees By this credibility resolution I also find that the employer s misunderstanding was articulated by officials other than Attorney Reid On a separate point I credit Contreras and Taylor with respect to there only being employees of Respondent with a group making distribution on November 15 1981 and Zajtc s differing testimony is rejected as erroneous 14 Rochester General Hospital involved a fact situation in which repre sentatives of the labor organization there involved had penetrated to this hospitals lobby and into its cafeteria a far cry from modest plans to handbill at a back employee only entrance which was itself camera mon itored by the employer 15 See Jt Exh I for pictorial features of this area 821 osition that security at the facility was in any way im paired by distribution as was made at a building entrance for employees, and the near constant bustle of activity and vehicular movement at the several motor or pedes trian entrances to the facility defeats this suggestion as a viable alternative 16 The General Counsels second objective with this liti gation is to remedy the arrest of Taylor, asserting that this is an additional 8(a)(1) violation I agree that Re spondent has compounded its unlawful interference with the Union s orderly, permissible attempt to communicate in writing with its members by appearing where they normally funnel through when arriving for or leaving work The stagy action of Nagel in rendering an actual arrest of Taylor on February 17 1982 had a forseeably inhibiting, coercive effect on Hewitt and for this reason constituted the unfair labor practice alleged See Harvey s Resort Hotel, 236 NLRB 1670 (1978) Cf Chrysler Corp, 232 NLRB 466 (1977) In addition to the times that intervened between the two operative episodes of this case, Taylor has made dis tribution without further interference on approximately 10 more occasions over the spring and summer months of 1982 Notwithstanding his success in doing so I be lieve that a full appropriate remedy should obtain be cause the capricious nature of interference shown here affects fundamental Section 7 rights The remark of Collup on November 16 1981, is indicative of this char acterization, for it is hardly the duty of a representative for the Union to prevail on security guards to make tele phone contact with her in resolving any dispute about distribution of rights rather it is Respondents obligation to assure that its rules relating to such activity be lawful ly applied Similarly the reckoning that was visited on Taylor on February 17, 1982, while on many later loca tions of similar import being tolerated can only be viewed as a rather conscious form of harassment against the Union This conduct is intertwined with alleged in terference about employee distribution within the mean ing of paragraph 6(b) of the complaint (as amended) and I thus further find that Hewitt was also the subject of unfair labor practice conduct on February 17 1982 even though he was not forced away from the premises as was Taylor However, for remedy purposes this viola tion merges into that committed a few months earlier On this basis I specifically hold that the main incidents of the case are not isolated or inconsequential in nature, but instead are meritoriously appropriate for remedial action Accordingly I render conclusions of law that Re spondent by interfering with the solicitation of employ ees and with the distribution of leaflets to such employ ees by both employee and nonemployee agents of the Union at an employee entrance of the facility and by causing the arrest of a nonemployee representative of the 11 Respondent also developed the notion that the area telephone direc tory should have been scoured in an effort to make necessary contact with employees This technique is one fraught with delay uncertainty and frustration as shown from testimony of Respondent s own witness in consequence of which Respondent s reconstruction of how a majority of the hotel service unit s employees were identifiable in this manner is una vailing to it as a defense 822 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Union in the presence of an employee because, and while in the process, of his solicitation of Respondents em ployees and distribution of leaflets to such employees at the employee entrance of the facility, has engaged in unfair labor practices within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed17 ORDER The Respondent Sahara Tahoe Corporation d/b/a Sahara Tahoe Hotel, Stateline, Nevada, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Interfering with the solicitatioin of employees and the distribution of leaflets to such employees by both em ployee and nonemployee agents of the Union at an em ployee entrance of the facility (b) Confiscating literature of the Union, or any other labor organization, that has been or is being distributed to employees in nonwork areas and on nonwork time (c) Causing the arrest of a nonemployee representative of the Union in the presence of an employee because, 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 and while in the process, of this representatives solicita tion of Respondents employees and distribution of leaf lets to such employees at the employee entrance of the facility located on company property (d) In any like or related manner interfering with, re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Post at its facility in Stateline, Nevada, copies of the attached notice marked Appendix 18 Copies of the notice on forms provided by the Regional Director for Region 32, after being signed by the Respondents au thorized representative shall be posted by the Respond ent immediately upon receipt and maintained for 60 con secutive days in conspicuous places including all places where notices to employees are customarily posted Rea sonable steps shall be taken by the Respondent to ensure that the notices are not altered defaced, or covered by any other material (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 18 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board