Little & Co.

National Labor Relations Board - Board Decisions

Sep 21, 1989

296 N.L.R.B. 691 (N.L.R.B. 1989)

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.