NLRB v. Tamiment, Inc., 19271.

• Decision Date: 09 November 1971
• Docket Number: No. 19271.,19271.
• Citation: 451 F.2d 794
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TAMIMENT, INC., Respondent.
• Court: U.S. Court of Appeals — Third Circuit

451 F.2d 794 (1971)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TAMIMENT, INC., Respondent.

No. 19271.

United States Court of Appeals, Third Circuit.

Argued June 24, 1971.

Decided November 9, 1971.

John D. Burgoyne, Asst. Counsel, N. L. R. B., Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, David E. Rosenbaum, Atty., N. L. R. B., on the brief), for petitioner.

Irving D. Lipkowitz, Lipkowitz, Plaut, Salberg & Harris, New York City (Melvin Salberg, David Kramer, New York City, on the brief), for respondent.

Before BIGGS and ROSENN, Circuit Judges, and KRAFT, District Judge.

OPINION OF THE COURT

ROSENN, Circuit Judge.

The National Labor Relations Board has applied to this court pursuant to Section 10(e) of the National Labor Relations Act (29 U.S.C. § 160(e)) for enforcement of its order issued against respondent Tamiment, Inc., for violating Section 8(a) (1) of the National Labor Relations Act (29 U.S.C. § 158(a) (1))¹ by refusing to allow access to its premises for union representatives attempting to organize its workers. The opinion of the Board is reported at 180 N.L.R.B. No. 171.

The sole issue raised is whether the union has made an adequate showing that there are no reasonable alternative means for generating face to face contact with workers without having access to the employer's property. In view of the nature of the issue, the operations of Tamiment's resort should be described.

Tamiment, Inc., is an adult summer camp operated from approximately the beginning of May to the end of September each year in the Pocono Mountains of Eastern Pennsylvania. It is about four and a half miles from Bushkill, Pennsylvania, and thirteen miles from the larger town of East Stroudsburg, Pennsylvania.

The resort is a largely self-contained entity. Its 2200 acres, 475 of which are developed, are totally enclosed by a barbed wire fence. The main entrance to the hotel is a private road, approximately "four city blocks long," leading from the highway to the entry gate. A guardhouse stands at the gate and controls all entry to the property. There is an employee parking lot just outside the entrance gate with a capacity for 200 cars. Although no general solicitation is permitted on the property, members of the public are permitted to enter to look around on one hour passes. Once inside the gate a guest can move freely around the property.

The resort has almost all the living and recreational facilities that its guests and the 85% of the staff who live on the premises need. Besides a dining room, there are lakes, swimming pools, golf, nightclubs and other activities. There is also a United States Post Office on the premises that will send and receive mail for guests and staff.

The staff live in cottages spread throughout the grounds. They are given all their meals free which they take in their commissary, or in the main dining room before the guests eat. They have available a laundromat, and they can use all the recreational facilities of the hotel except in peak vacation periods and on weekends. There are no private telephones in the staff cottages, although there are public telephones at various locations. Those members of the staff who wish can bring food in to cook on hotplates in their rooms. Staff who live off the premises are given the meals served during their work hours without charge.

On their free time, employees frequent the Log Cabin, a bar and grill about one mile down the road from Tamiment, and other bars and restaurants in the area. They also go to the racetrack nearby and to other resorts in the Poconos. The nearest cinema is in East Stroudsburg, twelve to fourteen miles away. When the employees are on duty, most of them, with the exception of administrative and golf personnel, wear uniforms, but the management encourages them to wear regular clothes during their off-duty hours.

The staff is transitory. During the season the number of employees varies from about 300 in the slow spring and fall periods to a peak of about 435 during the summer. They are recruited from Florida, New York, New Jersey, and Pennsylvania. Job advertisements are sent to state and federal employment agencies and to many colleges. A large number of the work force are students employed during their summer vacations. Many workers stay only a few weeks, and most do not last the entire five month season. Although the management writes each winter to the past season's employees to ascertain if they wish to return to Tamiment for the upcoming season, only about 25% to 30% of the staff do so.

The employees work a variety of shifts. Some departments of the resort, such as reservations and maintenance, are on a twenty-four hour basis; others operate for eight to sixteen hours a day. Most people are on a six day week, although some waiters and waitresses are expected to work seven days weekly. An eight hour day is standard, but the dining room and beverage people have periods on and off duty throughout the day coinciding with meal hours and the operation of the nightclub. The housekeeping staff is also employed on a staggered work day basis.

During the spring of 1969, Local 558 of the Hotel and Restaurant Employees Union began an organizing campaign throughout resorts in the Pocono Mountains. Harvey Morse, the international trustee in charge of the local (Local 558 is in trusteeship) and its local organizer, Serge Schuster, had responsibility for winning representation of the employees at Tamiment.

On or about April 1, 1969, Morse and Schuster went to Tamiment and talked with Victor H. Gerard, the Managing Director of the resort, and an associate, Alex Blaker. Morse suggested that because of a fire which had damaged Unity House, a nearby hotel owned by the International Ladies Garment Workers Union, it would be helpful for Tamiment's business if it were unionized. Gerard rejected the offer.

On May 12, the day before the season began in 1969, Schuster appeared at the gate to Tamiment, but was denied admission by the guard unless he had a permit from the management. He departed without meeting anyone and returned the next day, stationing himself near the employees' parking lot. He talked with four members of the staff. They signed authorization cards and at their request were given additional cards for other employees to sign. Schuster arranged to meet with them in a week. During the same visit Schuster also put union literature on various cars in the parking lot without interference by the guards.

Schuster again returned a day or two later and talked with Allen Menell, Administrative Manager of the hotel, who told him that if he wanted access to the employees he would have to have the permission of the management of Tamiment in New York. On May 15, the union sent such a letter, but it was never answered. On the following day, Schuster attempted to hand out leaflets just outside the gate, but Menell asked him to leave because traffic was heavy that Friday afternoon and he was causing congestion.

A few days later Schuster again returned. He did not find the four employees to whom he had previously talked, but he attempted to sign up three other workers just outside the guardhouse area. The guards interfered and refused to allow solicitation there.

On May 22, Schuster returned to Tamiment but was told by the guards that he could not come up to the guardhouse nor could he use the private road from the highway. Schuster noted that now there were "no trespassing" signs posted along the road. On May 28, Morse and Schuster met with Gerard, the Managing Director, to ask for permission to enter the grounds. Their request was rejected.

Thereafter, Schuster began going to the Log Cabin, a nearby bar and grill, and to another tavern in Bushkill, for the purpose of meeting employees. He continued to visit these places approximately twice a week until Tamiment closed at the end of September.

Mr. Schuster's final attempt to enter the property was a visit in mid-June as a guest during a meeting of two Philadelphia Cap and Millinery Union locals. Shortly after Schuster's arrival, Gerard and Menell received reports that he was talking to employees who were on duty and passing out literature. They sought him out and asked him to act like a guest or leave the premises. Schuster claims that he was then followed closely by security personnel and began to feel extremely uncomfortable even though he was not talking to employees. About two hours after the conversation, he decided to leave and checked out.

In sum, Schuster could claim that after a summer's effort he had spoken to about 25 employees and handed out about 150 authorization cards. He had secured only 12 signed cards.

On this record, the trial examiner found that management had violated Section 8(a) (1) of the National Labor Relations Act by excluding non-employee organizers from the premises when there were no effective off-premises channels of communication available to the union. He noted that the resort is a completely self-contained community, whose employees rarely need to leave. The staggered shifts and the lack of telephones make communication difficult. In his opinion, the union had made reasonable efforts to reach employees through the normal channels of communication, but such efforts were "doomed to failure." The only effective means was direct access to the premises. The Labor Board affirmed the trial examiner's findings.

If Tamiment's employees had undertaken this drive, there would be no question as to their right to campaign on its grounds. We are concerned with a different situation: the right of non-employee representatives of a union to have access to an employer's private property for the purpose of organizing his workers.²

The Supreme Court laid down the fundamental test for determining when non-employee organizers should be allowed to enter company property in NLRB v....