Little & Co.

LITTLE & CO. Little & Co. and Communications Workers of Amer- ica, Local 3603. Case 11-CA-12037 September 21, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On March 30, 1987, Administrative Law Judge Philip P. McLeod issued the attached decision. The Respondent filed exceptions and a supporting brief,' and the General Counsel filed an answering brief. 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, as modified and explained below, and to adopt the recommended Order.2 The judge found that the Respondent, the co- owner and manager of a large office building, vio- lated Section 8(a)(1) of the Act by threatening to cause the arrest of three individuals who, in sup- port of an economic strike against AT&T, a tenant of the Respondent, were picketing in the elevator lobby adjacent to AT&T's offices. The judge, ap- plying the test of Fairmont Hotel, 282 NLRB 139 (1986), which at the time governed questions of nonemployee access to private property , compared the relative strength of each party's claim. He found that the Section 7 right of the Union to picket in the area immediately adjacent to the premises of the struck employer "clearly out- weighed" the Respondent's right to limit such access to its property. The judge then addressed the question of wheth- er there were reasonable alternative means for the Union to communicate its message while noting that he was not required to do so under Fairmont.3 He found that effective communication by the Union with nonstriking employees and customers of AT&T could not be accomplished without access to some location or locations within the Re- spondent's building. The judge also found that the Respondent's threat to arrest the pickets was phrased in terms of their presence on "private" property generally, and it neither objected specifi- i The Respondent's request for oral argument is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties 2 We affirm the judge's denial of the General Counsel 's request for a visitatorial clause See Cherokee Marine Terminal, 287 NLRB 1080 (1988) 8 Fairmont held that only when the property owner's claim and the Sec. 7 claim are relatively equal in strength would such an analysis become determinative 691 cally to the 14th floor location nor indicated that any alternative sites within the building would have been permitted . Further, according to the judge, such restrictions to lower floors would have, in any event, substantially diluted the Union's Sec- tion 7 rights and thus the 8 (a)(1) finding "tends to be reinforced rather than diminished" under the reasonable alternative means analysis. We have de- cided, for the reasons set forth below, to adopt the judge's conclusion that the Respondent violated Section 8(a)(1) by threatening to cause the arrest of the individuals engaged in protected strike activity. After the judge's decision issued, the Board de- cided Jean Country, 291 NLRB 11, 14 (1988), which reexamined and clarified the analytic ap- proach for resolving conflicts between Section 7 and private property rights . In that case, the Board stated: Accordingly, in 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 especially significant in this balancing process. In the final analysis however, there is no simple formula that will immediately deter- mine the result in every case. We now turn to consideration of the instant case in light of Jean Country. Little & Co. (the Respondent) is a co-owner and the manager of the Southern National Center (SNC) in downtown Charlotte, North Carolina. The facility consists of a 22-story office building with an attached 11-story parking garage.4 SNC's tenants are professional and commercial businesses including various retail establishments on the first and third floors. The SNC is bounded on three sides by city streets and on one side by another office building. There are three automobile en- trances to the parking facility including one ac- cessed directly from a tunnel from one of the bor- dering streets. In addition to the main pedestrian entrance to the SNC on College Street, there are several other ground floor entrances from College, Third, and Fourth Streets. Additionally, a public skywalk system connects the third floor of the SNC with three other office buildings to form Charlotte's Overstreet Mall. That portion of the Mall within the SNC consists of a number of small retail shops and restaurants. 4 We are including certain uncontroverted facts not set out in the ,fudge's decision. 296 NLRB No. 89 692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On June 1 , 1986, the Union began an economic strike against AT&T, which operated two facilities in space leased in the SNC-a retail phone store on the ground floor with an entrance directly from College Street and a nonretail business systems office on the 14th floor, where AT&T was the sole tenant. The latter office employed approximately 60 of the 65 AT&T employees located at the SNC. As set out by the judge, picketing began about 7 a.m. on the sidewalk outside SNC's College Street main entrance, which is adjacent to the phone store entrance. When Union President Ray Goodin learned from a sign in the phone store window that the store would be closed in response to the strike, he and two of the other College Street pickets went to the 14th floor elevator lobby at 7:45 a.m. and began picketing5 in that 26 -by-12 foot space adjacent to AT&T's business systems offices. En- trance to the offices is through glass doors at each end of the lobby. One of the doors is directly mon- itored by AT&T personnel and both of them can be locked by remote control from within AT&T's offices. No amenities are located in the lobby itself. All restrooms and water fountains are within AT&T's office space. According to the floor plan in evi- dence, a corridor within the office surrounds the lobby and provides employees ready access to all portions of the leased premises . However, record testimony shows that employees sometimes use the Respondent's lobby as a cut-through between the west and east wings of AT&T's office. Shortly after the picketing began in the 14th floor lobby, AT&T notified the SNC security de- partment of its objections to the strike activity out- side its offices. As found by the judge, the picket- ing was being conducted in an orderly, quiet, and peaceful manner. 6 The security department then notified the Respondent's property manager, Millie Elting. She arrived on the scene shortly after 8 a.m. and spoke with Goodin. Elting told him of a Charlotte city ordinance that she characterized as permitting picketing on "public property" and then asked him and the others to leave because they S Two of the pickets wore sandwich -style signs, and one of them car- ried a sign . The text of the signs included the printed words "CWA for CWA Members" and the handwritten phrases "AT&T on Strike" and "justice!". 6 AT&T's office doors opening on the lobby are unlocked at 7.30 a in Most employees report for work between 8 and 8:30 a m . During an ap- proximate 15-minute period after the pickets arrived on the 14th floor, two employees reported for work According to the testimony of Goodin, he spoke with each of them in an effort to convince them not to cross the picket line . He was not successful and the employees entered the offices without threat or other hindrance As found by the judge, the record shows that if any noise from the lobby disturbed employees who had already reported for work, it occurred not as result of the picketing itself, but rather during the Respondent 's later efforts to have the pickets leave its property were on "private property." Goodin refused and Elting then left the floor . She returned about 8:30 a.m. with a uniformed police officer and again asked the pickets to leave. The police officer then informed Goodin that they would be arrested if they did not leave the Respondent's private proper- ty. At this point Goodin and his colleagues left the SNC. Applying Jean Country's accommodation analysis to this case, we first find, as a threshold matter, that the Respondent's conduct in denying access to the 14th floor lobby to the Union's pickets was clearly based on a legitimate property interest. Little & Co. owns the SNC and thus exercises complete control over the common areas in the fa- cility, specifically including the elevator lobbies ex- terior to the spaces leased to its various tenants.? In assessing the relative strength of this property claim, we find that the 14th floor lobby, like the office building corridor in 40-41 Realty Associates, 288 NLRB 200 (1988), affd. mem. sub nom. Amal- gamated Dental Union Local 32-A v. NLRB, 867 F.2d 1423 (2d Cir. 1988), is completely surrounded by the leased premises of the struck employer. It is a quiet area with little or no public traffic other than by employees, customers, and suppliers of AT&T. Thus, the normal use of the lobby is quite limited, even though members of the general public are not physically barred from reaching it just before and during normal business hours. We find, therefore, that the Respondent's property right in this portion of the SNC not open to the public gen- erally is relatively substantial, or, in the words of the judge, "clearly not tenuous." We also agree with the judge's finding concern- ing the Section 7 right: The nature of the right asserted by the Union in this case, i.e., to effectively picket an employer against whom it is engaged in an economic strike in order to encourage employ- The judge also made findings with respect to the property rights of AT&T However, such rights are not at issue here because the struck em- ployer is not a party to this proceeding. The Respondent has no right to object on the basis of another person's property interests . In any event, AT&T's objection to having union pickets outside its offices does not in itself rise to the level of a property interest . See Jean Country, above at 12 fn 7 William Little, the Respondent 's president , testified, without spe- cific reference to any lease , that Elting acted to remove the pickets in fulfillment of the Respondent's promise to provide each of its tenants the "quiet enjoyment" of their leaseholds. Even if such a covenant is con- tained in AT&T's lease, it is merely an assurance against defective title. It is not a promise to the lessee that others will not "disturb" the lessee in the conventional sense See Polly Drummond Thnjtway, 292 NLRB 331, 332 In 7 ( 1989), enfd 882 F2d 512 (3d Cir 1989). The Respondent also claims an obligation as the landlord to protect AT&T from having its proprietary information and equipment within its offices sabotaged by the pickets Given that the pickets were at all times peaceful and at no time even attempted to enter the offices, this contention is too speculative to warrant any further consideration. LITTLE & CO. ees of the struck employer to cease working and in order to encourage customers of the struck employer to cease doing business with it, is unquestionably among the strongest and most compelling of all rights which a union has under Section 7 of the Act. With respect to the Union's choice of the 14th floor for its protected activity, we additionally note that it could not have more carefully restricted its picketing so as to reach its intended audience with- out enmeshing neutral employers or others. Turning to the alternative means factor, we agree with the judge that the General Counsel has met her initial burden of showing that without access to the SNC the Union, in seeking to exercise its strong Section 7 right, has no reasonable means of communicating with the audience that exercise of that right entails. The judge found that because of the many access points to the SNC, for both pe- destrians and drivers, located on the public streets and in three neighboring office buildings connected to the SNC by the skywalk system, the Union could not effectively communicate its message to nonstriking employees and customers of AT&T without picketing within the SNC itself. The Re- spondent does not contest this finding in its excep- tions. In fact, the Respondent, as found by the judge and as shown below, implicitly concedes it.8 During the hearing, and again in its exceptions, the Respondent contended that the Union 's picket- ing effort could have effectively reached all mem- bers of its target audience by adding to its original main entrance location on the College Street side- walk two additional locations within the SNC but far removed from the 14th floor. 9 However, in view of the fact that the threat to arrest the pickets was phrased in terms of the Respondent's objection to their presence on "private property" generally, we find that the pickets were effectively ejected a We note that this case is thus distinguishable from 40-41 Realty Asso- ciates, above, in which the Board disallowed picketing within the corri- dors of a privately owned office building . The Board found that the union had reasonable alternative means of communicating with its target audience because , before moving to the interior corridor , the union had picketed on public property in front of one of the two building entrances, thereby conveying its message to "virtually all" people going to the of- fices of the struck employer In this case there are far more than two entrances to the SNC and no indication that any single entrance is used by most of AT&T's employees and customers. Member Cracraft agrees that 40-41 Realty Associates is distinguishable, but does not pass on what result she might have reached in that case. ° Any AT&T employee or customer not entering the SNC through the College Street main entrance would necessarily have encountered pickets located either at the first floor entrance to the office building from the parking garage or in the third floor elevator area adjacent to the Over- street Mall shops. At these locations, in contrast to the 14th floor lobby, the public is extended a broad invitation to come on the property, and not necessarily with the specific purpose of purchasing a particular prod- uct or service " Jean Country, above at 15. 693 from the entire SNC.1 ° Thus, we agree with the judge that there was no reason for the Union to be- lieve that the Respondent would have permitted picketing at any location within its facility. We find it unnecessary to consider whether the Respond- ent's belatedly proffered locations constitute a rea- sonable private property alternative to the 14th floor. See Jean Country, 291 NLRB 11, 16 fn. 18, and W. S. Butterfield Theatres, 292 NLRB 30, 32- 33 fn. 9 (1988). 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, in the absence of reasonable alternative means of communication, the Union's Section 7 right would be "severely impaired-substantially 'destroyed' within the meaning of Babcock & Wilcox" " with- out entry onto the Respondent's property. By con- trast, if the pickets were allowed access to the 14th floor lobby for the purpose of delivering their mes- sage to customers and nonstriking employees of AT&T, the Respondent's private property rights would not suffer any noticeable degree of impair- ment. We find that, notwithstanding the relatively confined nature of the lobby, the Union's picketing presented no reasonable danger of physical ob- struction or violent confrontation in light of the total absence of either at any time prior to the Re- spondent's ejection of the three individuals from the SNC. We thus conclude that our accommodation of the competing rights requires that the Respondent's right to restrict access to its private property must yield to the Union's Section 7 right to picket in the 14th floor elevator lobby of the Respondent's office building. Accordingly, we affirm the judge's conclusion that the Respondent's threat to cause the arrest of individuals engaged in peaceful eco- nomic strike activity violated Section 8(a)(1) of the Act. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Little & Co., Charlotte, North Carolina, its officers , agents, successors, and assigns, shall take the action set forth in the Order. 10 Elting testified that she told Goodin "nothing" about the Union's ability to picket elsewhere within the SNC i i Jean Country, above at 17 694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD George Carson, Esq., for the General Counsel. Richard Vinroot and Mark W. Merritt, Esqs. (Robinson, Bradshaw & Hinson, P.A.), of Charlotte, North Caroli- na, for the Respondent. Ray Goodin , of Charlotte , North Carolina, for the Union. II. LABOR ORGANIZATION Communications Workers of America, Local 3603 is, and has been at all times material herein, a labor organi- zation within the meaning of Section 2(5) of the Act. DECISION STATEMENT OF THE CASE PHILIP P. MCLEOD, Administrative Law Judge. I heard this case on 14 October 1986 in Charlotte, North Carolina. The case originated from a charge filed by Communications Workers of America, Local 3603 (the Union), against Little & Co. (Respondent). On 8 July 1986, a complaint and notice of hearing issued which alleges, inter alia, that Respondent violated Section 8(a)(1) of the National Labor Relations Act (the Act), by threatening to cause the arrest of employees en- gaged in protected economic strike activity directed at AT&T Information Systems at the 14th floor foyer of the Southern National Center, an office building owned and operated by Respondent. In its answer to the complaint , Respondent admitted certain allegations, including the filing and serving of the charge, its status as an employer within the meaning of the Act, the status of Communications Workers of America, Local 3603 as a labor organization within the meaning of the Act, and the status of various individuals as supervisors and agents of Respondent within the meaning of Section 2(11) of the Act. Respondent denied having engaged in any conduct which would constitute an unfair labor practice within the meaning of the Act. At the trial herein , all parties were represented and af- forded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence. Fol- lowing the close of the trial, counsel for the General Counsel and Respondent both filed timely briefs with me which have been considered. On the entire record in this case and from my observa- tion of the witnesses, I make the following FINDINGS OF FACT I. JURISDICTION Little & Co. is, and has been at all times material herein, a North Carolina corporation engaged in real estate construction, development, and property manage- ment at various locations including the Southern Nation- al Center in Charlotte, North Carolina. During the past calendar year, which period is representative of all times material herein, Respondent purchased and received at Charlotte, North Carolina, goods and raw materials valued in excess of $50,000 directly from points located outside the State of North Carolina. During the same time, Respondent in the course and conduct of its busi- ness operations described above derived gross revenues in excess of $500,000. Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Strike Communications Workers of America, Local 3603 rep- resents approximately 60 to 65 employees employed by AT&T Information Systems at its facility located in the Southern National Center office building in Charlotte, North Carolina. Approximately 60 of these employees work in the AT&T general business office located on the 14th floor of this 22-story multitenant office building. The remaining employees work in the AT&T phone store, which until 1 June 1986 was located on the first floor of this same office building. On 1 June 1986, the Union began an economic strike against AT&T. On Monday, 2 June, the Union began picketing the main entrance of the Southern National Center and the AT&T phone store on the first floor of that building. While picketing, Union President Ray Goodin ob- served a sign placed in the window of the phone store stating that it was closed due to the work stoppage. At approximately 7:45 a.m., Goodin together with Kyle Spencer, an employee of Southern Bell, and Dayna Fletcher, a striking AT&T employee , entered the South- ern National Center, went to the 14th floor elevator lobby, and began picketing . Picketing was orderly, quiet, and peaceful.' Respondent is one of the general partners in the part- nership which owns the Southern National Center. Re- spondent also acts as the managing agent of the building. Shortly after 8 a.m., Millie Elting , Respondent's property manager, went to the lobby and requested that the pick- ets leave . Elting recalled that in her conversation with Goodin she made specific reference to a Charlotte city ordinance which permits picketing only on public prop- erty, and Elting reminded Goodin that they were on pri- vate property . Goodin refused to leave. At approximate- ly 8:30 a.m., Elting returned, accompanied by a uni- formed policeman . Elting again told Goodin to leave. The policeman told Goodin that the pickets were on pri- vate property and threatened arrest if they did not leave the premises. Goodin and the employees then left. B. The Building As indicated above, the Southern National Center is a 22-story office building in downtown Charlotte, North Carolina. AT&T leases the entire 14th floor of that building. Until the strike began, it also leased space for the phone center store on the first floor . Adjacent to the Southern National Center is a multistory parking garage. ' Respondent offered some evidence to suggest that at some point there was undue noise which distracted working employees . The record is clear, however, that whatever loud talking and noise occurred, did so only in the context of Respondent 's attempt to have the pickets removed from the building and not during the course of the picketing itself. LITTLE & CO This parking garage offers several avenues of access to the Southern National Center . These avenues include a main parking deck entrance, an entrance from the second level of the parking deck to a stairway leading to the second floor of the Southern National Center, and an en- trance leading from the parking garage to the mail room of Southern Bell. Under normal circumstances , only the main entrance from the parking garage to the building is used on a regular basis by employees who work in the building and by the public at large . Access to the build- ing is also available through the Southern National Bank entrance, the loading dock, and a side door to the build- ing located on an adjacent street. The third floor of the Southern National Center is an integral part of Charlotte's "Overstreet mall." This "Overstreet mall" is a downtown shopping mall that comprises and connects several major office towers and retail establishments through the use of Overstreet walk- ways and connecting bridges. The mall is devoted to retail use, including many small shops and restaurants. Three Overstreet walkways connect the Southern Na- tional Center to various other downtown buildings. The Southern National Center has two banks of eleva- tors. One serves floors 1 through 13 and the other serves floors 1, 2, 3, and 13 through 22. Floors 1, 2, 3, and 13 are therefore serviced by both banks of elevators. The building also contains various stairwells for use in case of emergency , including a stairwell from the loading dock which provides access to each floor. Under normal cir- cumstances, access is obtainable from various floors in the building to the stairwells for emergency use, but the doors are normally locked and prohibit access from the stairwells to the building. The elevator lobby on the 14th floor where the Union picketed is approximately 26-by-12 feet. At both ends of the lobby, glass doors enter into the offices of AT&T. One set leads to the main reception area of AT&T where visitors are met by a receptionist who is stationed in such a manner that she can see anyone entering or leaving the offices. As previously indicated, AT&T occupies the entire 14th floor. Within the AT&T offices, access is available to any portion of that space through a sur- rounding corridor . Employees sometimes use the eleva- tor lobby, however, as a cut-through when going from one side of the building to the other . As noted above, ap- proximately 60 employees represented by the Union work on this floor. Analysis and Conclusions This case involves the issue of a union's right to picket on private property . Counsel for the General Counsel contends that the Union's ability to picket the 14th floor elevator lobby was essential in order for it to effectively communicate with employees and customers of AT&T, and that Respondent's property rights must therefore yield. Respondent argues that "the availability of alterna- tive sites for picketing and the openness of the private property to the public are the determining factors in re- solving the conflict between private property rights and Section 7 rights." Respondent argues that the Union had alternative sites for picketing and that the elevator lobby was not generally open to the public in the same way 695 that a public sidewalk or private shopping mall is open. Respondent argues, therefore, that its private property rights should prevail and the Union should not be per- mitted in these circumstances to picket the elevator lobby. Both counsel for the General Counsel and Re- spondent cite, discuss, and rely on Hudgens v. NLRB, 424 U.S. 507 (1976), and Seattle-First National Bank, 243 NLRB 898 (1979), affd . but remanded concerning remedy 651 F.2d 1272 (9th Cir. 1980), on remand 258 NLRB 1222 ( 1981). In Fairmont Hotel Co., 282 NLRB 139 (1986), the Board has recently had another opportunity to review and consider the accommodation which becomes neces- sary in cases such as these, and the balancing test which must be utilized in order to resolve them . The Board quoted the Court's decision in Hudgens v. NLRB, supra: Under the Act, the task of the Board . . . is to resolve conflicts between Section 7 rights and pri- vate property rights, "and to seek a proper accom- modation between the two." Central Hardware Co. v. NLRB, 407 U.S. at 543 . What is "a proper ac- commodation" in any situation may largely depend upon the content and the context of the Section 7 rights being asserted. The locus of that accommodation . . . may fall at differing points along the spectrum depending on the nature and strength of the respective Section 7 rights and private property rights asserted in any given context. In each generic situation , the primary responsibility for making this accommodation must rest with the Board in the first instance. (424 U.S. at 521, 522.) After discussing recent cases in this area, the Board stated: Factors that may affect the relative strength or weakness of a property right claimed by an employ- er or other property owner include, but are not lim- ited to, the use to which the property in question is put; the restrictions, if any, that are imposed on public access to the property or to the facility locat- ed on the property ; and the size and location of the private facility. Similarly, in this context, not every Section 7 right that is asserted will be equally compelling. The Supreme Court recognized that the relative strength of the claims to property rights and Sec- tion 7 rights would vary in each case when it said that the accommodation of the two "may fall at dif- ferent points along the spectrum . . . in any given context." . . . Factors that may affect the relative strength or weakness of a claim of Section 7 rights include, but are not limited to, the nature of the right asserted, the purpose for which it is being as- serted, the employer that is the target of the activi- ty, the situs of the activity, the relationship of the situs to the target , the intended audience of the ac- tivity, and, possibly, the manner in which the right is being asserted. 696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD [I]t is the Board's task first to weigh the relative strength of each party's claim. If the property owner's claim is a strong one, while the Section 7 right at issue is clearly a less compelling one, the property right will prevail. If the property claim is a tenuous one, and the Section 7 right is clearly more compelling, then the Section 7 right will pre- vail. Only in those cases where the respective claims are relatively equal in strength will effective alternative means of communication become deter- minative. The property in question in the instant case is the lobby of the 14th floor of a 22-story office building in downtown Charlotte, North Carolina . The 14th floor is used exclusively by AT&T, and quiet peaceful picketing would therefore not disturb other tenants of the building. There are no actual restrictions imposed on public access to the property. Any member of the public could enter the Southern National Center , ride the elevator to the 14th floor, and exit onto the lobby in question. As a practical matter, however, the 14th floor and its lobby are used on a regular day-to-day basis only by employees of AT&T, many of whom are represented by the Union, and by business customers visiting AT&T. Significant testimony was devoted to the question of whether busi- ness customers were "invitees" or "walk-ins." I find this to be of little significance because the Union 's purpose in picketing the 14th floor lobby would be to appeal to those business customers regardless of whether they were there because of a prearranged appointment or as a walk-in. Further, regardless of which category customers might fall into, the fact remains that there are no restric- tions imposed on public access to the lobby or to the re- ception area of AT&T on the 14th floor . The fact that most of the customers frequenting AT&T on the 14th floor of the Southern National Center have prearranged appointments is relevant only in that it tends to distin- guish the business of AT&T conducted on that floor from that of a retail store located in a shopping mall (as was the case in Hudgens Y. NLRB) or a restaurant in an office building (as was the case in Seattle-First National Bank). This fact is more relevant than with respect to AT&T's use of its property than with respect to public access to the property. The nature of the right asserted by the Union in this case, i.e., to effectively picket an employer against whom it is engaged in an economic strike in order to encourage employees of the struck employer to cease working and in order to encourage customers of the struck employer to cease doing business with it, is unquestionably among the strongest and most compelling of all rights which a union has under Section 7 of the Act.2 The relationship of the situs of the Union's picketing to the intended target of its activity is one of the most significant factors in cases such as this. In Scott Hudgens, picketing at a mall retail store was permitted because one of the main targets of the activity , the store's customers, frequently 2 This statement should not be read out of context to infer any imbal- ance between the rights of unions under Sec 7 under the Act and the rights of individuals to choose for themselves whether to engage in con- certed activity. enter such a store on impulse only after entering the mall. This fact was noted by the circuit court in Seattle- First National Bank v. NLRB, supra, when it stated, "crucial to the Board's decision [in Scott Hudgens] was its finding that the picketers could not identify potential customers of the shoe store when they entered the mall, but only when they entered the store." The Ninth Cir- cuit, in enforcing the Board's decision in Seattle-First Na- tional Bank, engaged in an analysis much like that which the Board itself has prescribed in Fairmont Hotel. The circuit court stated: In the final analysis, our approval of the Board's conclusion that pickets should be allowed on the 46th floor [of the Seattle First National Bank tower] rest on the peculiar nature of picketing. Even if the union can adequately inform most of the restau- rant's customers of the existence of the strike with- out stationing picketers on the 46th floor, the union cannot fully implement its Section 7 rights without confronting the customers in front of the restaurant. Picketing is more than mere dissemination of infor- mation. "The loyalties and responses evoked by picket lines are unlike those flowing from appeals by printed words." Hughes v. Superior Court, 339 U.S. 460, 26 LRRM 2072 (1950). The Union's pick- eting is clearly much more effective on the 46th floor, where restaurant customers and nonstriking employees are identifiable, than at the entrance to the building . Restricting picketing to the entrances to the building would substantially dilute the Union's Section 7 rights since the effectiveness of a picket line depends on the location. In weighing the relative strength of each party 's claim in the instant case, I find that while the property claim of Respondent and the employer are certainly not tenuous, they are clearly outweighed by the Section 7 rights of the Union to picket in the elevator lobby immediately adjacent to the premises of the struck employer where both nonstriking employees and customers are readily identifiable. Accordingly, I find that by threatening to have pickets arrested for exercising such Section 7 rights, Respondent violated Section 8(a)(1) of the Act. Having reached the conclusion that the Union's Sec- tion 7 rights outweigh the private property rights of the employer in the instant case, the Union's alternative means of communication with nonstriking employees and customers of AT&T is not "determinative." In Fairmont Hotel Co., the Board did not say, however, that such al- ternative means of communication are not relevant fac- tors to be considered. It said only that in circumstances such as these they are not "determinative." Considering the Union's alternative means of communicating with nonstriking employees and customers of AT&T, the deci- sion already reached tends to be reinforced rather than diminished . The record establishes quite clearly that the Union cannot effectively communicate its message to nonstriking employees and customers of AT&T without picketing on private property. The Southern National Center is connected to the adjacent parking garage and on the third floor forms an integral part of the "Over- LITTLE & CO. street mall" in downtown Charlotte . Three Overstreet walkways connect the Southern National Center to other downtown office buildings. At the trial and in its post- trial brief, Respondent in effect concedes that the Union must picket on private property in order to effectively communicate its message . Respondent argues that the Union could effectively reach its intended audience by picketing the main entrance to the building, the elevator lobby on the third floor, and the elevator lobby at the first floor parking deck. Only the main entrance of the building is on public property. The other two locations suggested by Respondent are both within the building on private property. On 2 June when Property Manager Elting demanded that the Union leave the elevator lobby on the 14th floor or face arrest, she did not even suggest that Respondent would permit picketing at another location inside the building. In fact, Elting admitted citing a Charlotte city ordinance that permits picketing only on public property. There is simply no reason to believe that Respondent would have permitted picketing at any location on pri- vate property or within the building. Respondent has presented no objective basis for concluding that its rights as property owner outweigh the rights of the Union. In fact, Respondent in effect concedes that picketing on pri- vate property was, and is, a necessity for the Union to reach its intended audience . This being the case, there is no reason to restrict the Union 's picketing to elevator lobbies on lower floors of the building rather than the el- evator lobby on the floor actually occupied by the struck employer. In the words of the Ninth Circuit Court of Appeals, the Union's picketing is clearly much more ef- fective on the 14th floor, where customers and nonstrik- ing employees are identifiable, than at the entrance of the building. Restricting picketing to the entrances to the building and elevator lobbies on the lower floors would substantially dilute the Union 's Section 7 rights since the effectiveness of a picket line depends on the location. Accordingly, to the extent that the Union's alternative means of communicating with its intended audience is relevant to the determination in this case, I find that this factor weighs more heavily in allowing the Union to picket peacefully and quitely as it was on the 14th floor of Respondent's building than at other locations suggest- ed by Respondent. CONCLUSIONS OF LAW 1. Respondent Little & Co. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Communications Workers of America, Local 3603 is, and has been at all times material herein, a labor orga- nization within the meaning of Section 2(5) of the Act. 3. By threatening to cause the arrest of individuals en- gaged in protected economic strike activity in the 14th floor elevator lobby of the Southern National Center building, Respondent violated Section 8(a)(1) of the Act. 4. The unfair labor practice which Respondent has been found to have engaged in, as described above, has a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing com- 697 merce and the free flow of commerce within the mean- ing of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Included in the brief of counsel for General Counsel was a reproduction of what has become a form brief filed by counsel for General Counsel in every case asking that as a part of the remedy a visitatorial clause be included , giving counsel for General Counsel certain specific discovery powers during the compliance stage of this proceeding. In recent cases, the Board has granted such a request only on a case-by-case basis where it has felt such a clause is warranted . In this case, counsel for General Counsel points to no specific facts and no spe- cial circumstances which would warrant such a clause. This case does not involve a computation of backpay, the location of unknown discriminatees, or other special circumstances which, in my view, might warrant such a clause. Counsel for General Counsel's request is there- fore denied. Accordingly, on these findings of fact and conclusions of law, I issue the following recommended3 ORDER The Respondent, Little & Co., Charlotte, North Caro- lina, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening to cause the arrest of individuals en- gaged in peaceful, protected, economic strike activity in the 14th floor elevator lobby of the Southern National Center building, as long as that activity is conducted by a reasonable number of persons and does not unduly interfere with the normal use of facilities or the oper- ation of businesses not associated with AT&T.4 (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post in the 14th floor elevator lobby of the South- ern National Center in Charlotte, North Carolina, copies of the attached notice marked "Appendix."5 Copies of said notices, on forms provided by the Regional Director for Region 11, after being signed by Respondent's au- thorized representative, shall be posted by Respondent immediately upon receipt and maintained for 60 consecu- 3 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. * Seattle-First National Bank, 258 NLRB 1222, 1223 (1981) s 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 " 698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tive days in conspicuous places, including all places where notices to the public are customarily posted. Rea- sonable steps shall be taken by Respondent to ensure that said 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 Respondent has taken to comply. 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 or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT threaten to cause the arrest of members or representatives of Communications Workers of Amer- ica, Local 3603, for peacefully picketing in the elevator lobby on the 14th floor of the Southern National Center. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. LITTLE & CO.