Emery Realty, Inc. v. N.L.R.B.

• Decision Date: 19 December 1988
• Docket Number: 88-5044,Nos. 87-6279,s. 87-6279
• Citation: Emery Realty, Inc. v. N.L.R.B., 863 F.2d 1259 (6th Cir. 1988)
• Parties: 130 L.R.R.M. (BNA) 2154, 57 USLW 2435, 110 Lab.Cas. P 10,885 EMERY REALTY, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1259

863 F.2d 1259

130 L.R.R.M. (BNA) 2154, 57 USLW 2435,

110 Lab.Cas. P 10,885

EMERY REALTY, INC., Petitioner, Cross-Respondent, v.NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

Nos. 87-6279, 88-5044.

United States Court of Appeals Sixth Circuit.

Argued Oct. 17, 1988.

Decided Dec. 19, 1988.

David L. Barth(argued), Paul R. Moran, Cors, Bassett, Kohlhepp, Halloran and Moran, Cincinnati, Ohio, for Emery Realty, Inc.

Aileen A. Armstrong, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., Collis Suzanne Stocking, Margaret G. Bezou(argued), Emil C. Farkas, Director, Region 9, N.L.R.B., Cincinnati, Ohio, Gerald Kobell, Regional Counsel, N.L.R.B., Region 6, Pittsburg, Pa., for N.L.R.B.

Before MERRITT, MARTIN and MILBURN, Circuit Judges.

MILBURN, Circuit Judge.

Emery Realty, Inc.("Emery")petitions to set aside a National Labor Relations Board's ("Board") order requiring it to allow nonemployee union representatives to distribute union handbills on its property (No. 87-6279).On cross-application, the Board seeks to have its order enforced (No. 88-5044).The Board's decision and order are reported at Emery Realty Inc., 286 N.L.R.B. No. 32, 126 L.R.R.M. 1241(Sept. 30, 1987).For the reasons that follow, we deny Emery's petition to set aside and grant enforcement of the Board's order.

I.

Emery owns and operates the Carew Tower complex in downtown Cincinnati, Ohio.It includes an office building, a hotel, and commercial space rented by various retail stores and service shops.The main lobby of the complex, the "Arcade," runs between the office and hotel spaces at ground level and spans the distance of a city block between two streets.The Arcade stores and shops face into the center walking space, which varies in width from thirty-five feet at center to twenty-five feet at its ends.The Arcade has two main public entrances from the streets at either end, and there are other entrances from the hotel, the office building, a large department store, and from a public elevated skywalk system that connects several downtown buildings.Some of the entrances are closed at night, but the Arcade itself is open seven days a week, twenty-four hours a day, except for one hour each year when Emery closes all the public entrances.Emery provides security guards who patrol the Arcade around the clock.

Emery has no written policy prohibiting distribution or solicitation in the Arcade, but it has occasionally enforced an unwritten rule against such activity.Emery has permitted the Salvation Army, the Shriners, the Girl Scouts and other nonprofit organizations to solicit funds in the Arcade.

The Netherland Hilton operated in the Carew Tower hotel space for many years until late 1981.During its existence, the hotel's employees were represented by the Hotel, Motel, Restaurant Employees and Bartenders Union Local 12, an affiliate of the AFL-CIO ("Union").After the Hilton closed, the hotel space was leased by the Dunfey Corporation, which opened the Netherland Plaza Hotel in October 1983.

The Netherland Plaza Hotel maintains a separate entrance for its employees in an alcove at the end of the Arcade.The employees must use the separate entrance whenever they enter or leave work, and they are prohibited from wearing their uniforms outside the hotel.The employee entrance is generally in use between 5:00 a.m. and 1:00 a.m. as employees report to or leave their various shifts.

On June 6 and 8, 1984, union representatives attempted to distribute handbills to people using the hotel employee entrance.The union hoped to organize the 300 hotel employees, not Emery employees, all of whom are already organized.On the days in question, union officials were not hotel employees.

The representatives' attempt to distribute handbills was not their first effort to reach hotel employees.In May 1983, several months before the hotel opened, union president George O'Reilly wrote all former Netherland Hilton employees, informing them that the new hotel was taking job applications and asking them to advise the union if they were hired.In July 1983, the president of the Cincinnati Hotel Employees Council requested to meet with hotel officials to discuss the possibility "of an ongoing relationship" between the union and the hotel similar to the one maintained with the hotel's predecessor.The hotel forwarded the letter to its home office, but it appears from the record that no meeting was ever held.In October 1983, O'Reilly sent a second letter to all former Netherland Hilton employees, urging them to advise him if they had been hired by the hotel.Some former hotel employees responded, indicating they had applied for jobs, but none of the responses indicated that they had been hired.

During this time, O'Reilly also tried to identify the new hotel's employees through local contacts.He asked union members employed at other downtown hotels to find out if they knew anyone who had taken a job with the hotel, and he spoke at other union halls asking for help in getting the names and addresses of the hotel employees.These efforts yielded nothing.

O'Reilly attended opening day at the hotel hoping to recognize former union members.He saw one, a bartender, who was too busy to talk with him during the festivities, and he never saw the bartender again.Over the next eight months, O'Reilly and the union's vice-president ate lunch in a hotel restaurant on three different occasions, each time hoping to speak with hotel service employees.On other occasions, O'Reilly visited the lobby and other parts of the hotel with the hope of speaking with hotel employees; however, these attempts at personal contact were all unsuccessful.O'Reilly could not obtain the full names of employees by observing them because only their first names appeared on their name tags.He could not identify them after they left work because they were not permitted to wear their uniforms outside the hotel.

After more than a year of frustration, O'Reilly and two other Union representatives stood near the employees' entrance in the Arcade and distributed Union handbills to people coming and going to work.After approximately fifteen minutes, Emery security guards informed them soliciting was not permitted, and they would be arrested if they did not leave.They left, but returned two days later.This time they distributed handbills for almost twenty minutes before being threatened with arrest by city policemen summoned by Emery's building superintendent.

Three days later, on June 11, 1984, O'Reilly wrote hotel officials and requested a list of employees' names and addresses.That request was refused.O'Reilly then filed an unfair labor practice charge against Emery.Thereafter, but before a hearing, the Union contacted hotel employees who agreed to provide information regarding other employees.That information, however, has never been forthcoming.

On April 18, 1985, an Administrative Law Judge ("ALJ") issued the decision that Emery had violated section 8(a)(1) of the National Labor Relations Act("the Act"), codified at 29 U.S.C. Sec. 158(a)(1), by refusing to allow the Union to distribute literature in the Arcade.The ALJ found Emery's unwritten rule against solicitation had not been applied in a discriminatory manner against the Union, but nevertheless held that Emery's private property rights had to yield to the Union's right to distribute literature because it had no other reasonable alternative means of reaching hotel employees.Emery appealed to the Board.

After the ALJ issued his decision, the Board decided Fairmont Hotel, 282 N.L.R.B. No. 27, 123 L.R.R.M. 1257(Nov. 13, 1986).In Fairmont, the Board announced a new analytical approach to conflicts between employers' private property rights and unions' rights.First priority would be given to weighing the relative strengths of each party's claims.The availability of reasonable alternative means of access would be considered only in those cases where the private property and labor rights were relatively equal.

Applying a Fairmont Hotel analysis to this case, the Board later found Emery's private property rights in the Arcade were relatively weak and outweighed by the Union's interest in organizational handbilling, which the Board determined was a "core right" inherent in section 7 of the Act.In addition, after reviewing the Union's prior attempts at reaching hotel employees, the Board determined its finding was further justified by the lack of alternative means by which the Union could communicate its message to hotel employees.

The primary issues presented in this appeal are:

(1) whether the Board erred in Fairmont by subordinating the availability of alternative means of access in cases of trespassory section 7 activities; and

(2) whether proof that a union has attempted all other alternative means of access is necessary to prove the existence of those means.

II.

A.

Our review of Board decisions is governed by the substantial evidence test.29 U.S.C. Sec. 160(e);Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456(1951).Where there is substantial evidence on the record as a whole to support the Board's conclusions, we must uphold them.Universal Camera, 340 U.S. at 488, 71 S.Ct. at 464.The Board's conclusions are entitled to deference if they are based upon a reasonably defensible construction of the Act.NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266-67, 95 S.Ct. 959, 968-69, 43 L.Ed.2d 171(1975)."The Board's application of the law to the facts is also reviewed under the substantial evidence standard, and the Board's reasonable inferences may not be displaced on review."NLRB v. United States Postal Service, 841 F.2d 141, 144(6th Cir.1988)(citingNLRB v. United Ins. Co., 390 U.S. 254, 260, 88 S.Ct. 988, 991, 19 L.Ed.2d 1083(1968))."Evidence is considered substantial if it is adequate, in a reasonable mind, to uphold the decision."Roadway...