NLRB v. New Pines, Inc.
| Decision Date | 04 October 1972 |
| Docket Number | No. 6,Docket 72-1025.,6 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NEW PINES, INC., Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
Joseph S. Rosenthal, New York City (Friedlander, Gaines, Ruttenberg & Goetz, Barry N. Steiner, New York City, on the brief), for respondent.
Steven C. Kahn, Attorney, N. L. R. B. (Peter G. Nash, General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Elliott Moore and Jan Weinberg, Washington, D. C., on the brief), for petitioner.
Before FRIENDLY, Chief Judge, and LUMBARD and FEINBERG, Circuit Judges.
This is the third case we have had in recent years in which the National Labor Relations Board has held that a hotel must allow union organizers on its property to provide access to employees. In NLRB v. S & H Grossinger's, Inc., 372 F.2d 26 (2 Cir., 1967), we enforced such an order; in NLRB v. Kutsher's Hotel & Country Club, Inc., 427 F.2d 200 (2 Cir., 1970), we did not. The key issue in all three cases is the same: whether "the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels . . . ." NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112, 76 S.Ct. 679, 684, 100 L.Ed. 975 (1956). In this case, the Board answered that question in the affirmative, and held that the hotel's refusal to allow access violated section 8(a)(1) of the National Labor Relations Act. Because we find no substantial evidence to support the Board's conclusion, we decline to enforce its order.
The hotel in question is the Pines Hotel, located—like Grossinger's and Kutsher's—in the Catskills region of New York State. The Pines is on Laurel Road, a public thoroughfare. On one side of the road are guest facilities, including rooms accommodating 900. There are also four buildings for staff.1 On the other side of the road, opposite the main entrance of the hotel, are nine buildings known as the Riverdale, which the company leases for use primarily as a residence for employees. Three different entrance ways along Laurel Road lead into the Riverdale. During the period in question, the number of employees at the hotel varied from 380 at the height of the season to a low of about 100. During the peak summer months, 50 per cent of the employees lived off the premises in nearby towns, 30 to 371/2 per cent lived in the Riverdale, and the rest lived on the hotel side of Laurel Road. Thus, during this period 80 to 871/2 per cent of the employees lived off the hotel premises.2 The company prohibited all solicitation by nonemployees on the hotel grounds but did not apply this rule to the Riverdale across the road or to the parking lot there, where commuting employees generally parked their cars before crossing the road to the hotel.
Attempts by the complaining union3 to organize the hotel employees began in the early summer of 1969. The first organizer confined his efforts primarily to distributing handbills and cards in front of the hotel's main gate. He had little success. In late September, another organizer took over. By visiting employees at their homes and attempting to talk to them in diners, bars and restaurants, he made more progress. Despite his lack of any prior experience, the second organizer obtained about 68 signed authorization cards in less than three months. Nevertheless, the union failed to attract sufficient support to force an election. During its campaign, the union made six requests for access to the premises, all of which were denied by the company.
The trial examiner dismissed the complaint, chiefly on the grounds that:
The Board, apparently by concentrating on the period after October 1, 1969, reached a contrary conclusion. It distinguished Kutsher's, supra, on the ground that there some 95 per cent of the employees could be contacted as they crossed a public road, while in this case:
During most of the year, the Union, despite more strenuous efforts than those exerted in Kutsher\'s, had no effective means of communicating with the 40 to 50 percent of the employees who lived on Respondent\'s premises.
The Board also relied on its then recent decision in Tamiment, Inc., 180 N.L.R.B. No. 171, since denied enforcement in 451 F.2d 794 (3d Cir. 1971), cert. denied, ___ U.S. ___, 93 S.Ct. 440, 34 L.Ed.2d 306 (1972). We believe that the Board, by disregarding what went on before October 1, erred and that there is no substantial evidence to support its findings and ultimate conclusion.
As already indicated, one of the crucial questions in access cases is whether a union, before insisting that an employer "aid...
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