S. & H. Grossinger's Inc.

National Labor Relations Board - Board Decisions

Dec 21, 1965

156 N.L.R.B. 233 (N.L.R.B. 1965)

S. & H. GROSSINGER'S INC . 233
be conducive to the efficient and uninterrupted flow of work within the
offset and letterpress operations of the Employer.
CONCLUSION
In view of all the foregoing, particularly the longstanding practice
of assigning the stripping and burning to employees represented by
the Guild, the Employer's satisfaction with that arrangement, and the
integrated relationship between the disputed work and other offset
operations performed by these employees, we shall determine the dis-
pute before us by awarding stripping and burning of offset plates for
use on offset presses located in the Davidson and Multilith rooms of the
Employer's plant to those employees represented by the Guild, but not
to that Union or its members." This determination is limited to the
particular controversy giving rise to this dispute.
DETERMINATION OF THE DISPUTE
Upon the basis of the foregoing findings, and upon the entire record
in this proceeding, the Board makes the following Determination of
the Dispute, pursuant to Section 10 (k) of the Act :
Employees, who are represented by the American Newspaper Guild,
AFL-CIO, and Cleveland Newspaper Guild No. 1, the American
Newspaper Guild, AFL-CIO, are entitled to perform the stripping
and burning of offset plates used on offset presses located in the Multi-
lith and Davidson rooms at the Employer's plant in Cleveland, Ohio.
"At the hearing , the Employer asserted that no logical distinction can be made be-
tween the Multilith and Davidson rooms, and therefore that all disputed work should
be assigned to one unit or the other. Nevertheless , as heretofore indicated , the Employer,
in its brief to the Board, proposed a compromise solution, splitting the work by allocating
the Davidson room portion to Photoengravers , while preserving the Multilith portion for
employees represented by the Guild . As we are satisfied that the Employer ' s initial
position was correct, and that the various factors on which the Board relies in determin-
ing jurisdictional disputes fail to support a distinction between the two rooms , we do not
adopt the Employer 's proposed solution herein.
S. & H. Grossinger's Inc. and Hotel and Restaurant Employees
and Bartenders International Union , Local 343, AFL-CIO
S. & H. Grossinger 's Inc. and Hotel and Restaurant Employees
and Bartenders International Union , Local 343, AFL-CIO, Peti-
tioner. Cases Nos. 3-CA-2242 and 3-RC-3243. December 21,
1965
DECISION, ORDER, AND DIRECTION
OF THIRD ELECTION
On May 7, 1965, Trial Examiner Samuel M. Singer issued his Deci-
sion in the above-entitled proceedings, finding that the Respondent had
156 NLRB No. 20.
234 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in and was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that the Respondent had not engaged in other
unfair labor practices alleged in the complaint and recommended dis-
missal of those allegations. In addition, he recommended sustaining
the objections to the election held on May 2, 1964, in Case No. 3-RC-
3243, setting aside the election and conducting a new election at a time
and date to be determined by the Regional Director. Thereafter, the
Respondent filed exceptions, a supporting brief, a brief answering the
General Counsel's cross-exceptions, and a request for oral argument.'
The General Counsel filed cross-exceptions and a brief and the Charg-
ing Party filed a memorandum in opposition to the Respondent's
exceptions.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the additions and modifica-
tions noted below.2 -
We find merit in the General Counsel's exception to the Trial Exam-
iner's failure to find that the Respondent violated Section 8 (a) (1)
of the Act when, during the Union's organizing campaign, its officials
stated in speeches to and conversations with employees, including Kuen
and Reich, that a more effective grievance procedure would be set up
in the future. In finding this conduct lawful, the Trial Examiner
relied on the fact that the Union had not yet been selected as bargain-
ing representative of the Respondent's employees. However, the
Board has frequently held that promises of. benefits to employees
during a union organizing campaign violates Section 8 (a) (1).'
Accordingly, we find that by this conduct the Respondent further
violated Section 8 (a) (1).
' In our opinion, the record, exceptions, and briefs adequately set forth the issues and
positions of the parties, and we therefore deny this request.
'In the absence of exceptions, we adopt pro forma the Trial- Examiner's finding that
the Respondent did not violate the Act by appealing to employees "to remain loyal mem-
bers of the `Greater Grossinger Family' and not to permit `outsiders' to disrupt the exist-
ing close relationship between management and employees." Further, the General Counsel
excepts to the Trial Examiner's failure to find that the Respondent violated Section
8(a) (1) by questioning employee Ezratti, in October 1964, whether the pickets had
approached him. However, in view of the fact that we are finding that the Respondent
violated Section 8(a) (1) in numerous other respects, we deem it unnecessary to pass
upon the lawfulness of this conduct for the reason that the finding of additional Section
8(a) (1) violations would be cumulative and would have no effect on the Order entered
herein.
3 See, for example, Scolding Locks Corporation, 150 NLRB 1688.
S. & H. GROSSINGER'S INC. 235
[The Board adopted the Trial Examiner' s Recommended Order and
set aside the election held on May 2, 1964, and remanded Case No.
3-RC-3243 to the Regional Director for Region 3 for the purpose of
conducting a new election at such time as he deems that circumstances
permit the free choice of a bargaining representative.]
[Text of Direction of Third Election omitted from publication.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
In Case No. 3-CA-2242 the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 3, issued a complaint on August 17,
1964 , based upon charges and amended charges filed by Hotel and Restaurant
Employees and Bartenders International Union, Local 343, AFL-CIO , herein called
the Union . The complaint alleges that S. & H. Grossinger 's, Inc., herein sometimes
called the Company or the Respondent , interfered with, restrained , and coerced
employees in violation of Section 8(a)(1) of the Act. In its answer , Respondent
denied the commission of the alleged unfair labor practices.
Case No. 3-RC-3243 was consolidated with the complaint case pursuant to an
order of the Regional Director issued August 17, 1964, the date of the complaint.
The Regional Director found that certain objections filed by the Union ( Petitioner in
that case ) to the election conducted May 2, 1964 , 1 raised substantially the same issues
as in the complaint case. The hearing in the consolidated proceeding thus consoli-
dated was held before Trial Examiner Samuel M. Singer in Liberty, New York, on
various dates between October 5 and 28, 1964. All parties appeared and were
afforded full opportunity to be heard, to examine and cross -examine witnesses, and
to introduce relevant evidence . Briefs received from all parties have been fully
considered.
Upon the entire record in the case,2 the briefs of the parties , and my observation
of the witnesses , I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY ; THE LABOR ORGANIZATION INVOLVED
Respondent , a New York corporation, with its principal office and place of business
in Liberty, New York3 operates a resort hotel , Grossinger 's, furnishing rooms, bev-
erages, food, and entertainment . During the past 12 months, a representative period,
Respondent received revenue in excess of $500,000 . During the same period it pur-
chased goods and materials, either directly or indirectly , from points outside New
York, valued in excess of $50,000. Also during that period , 75 percent or more of
its rooms weie rented to guests for less than 30 days. I find that at all material times
Respondent has been and is engaged in commerce within the meaning of the Act.
Hotel and Restaurant Employees and Bartenders International Union , Local 343,
AFL-CIO, is a labor organization within the meaning of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
1. Whether Respondent , in violation of Section 8 (a) (1), interfered with, restrained,
and coerced its employees through interrogation , threats, promises of benefit , creating
the impression of surveillance , encouraging and soliciting employees to withdraw from
the Union , and encouraging direct dealing by employees with management.
2. Whether Respondent also violated Section 8(a)(1) by denying to nonemployee
organizers access to the premises for the purpose of communicating with employees
residing therein concerning organizational matters.
1 The order inadvertently referred to May 12 Instead of May 2, 1964, as the date of
the election.
2 Certain typographcial and obvious errors In the transcript of hearing were corrected
by my orders entered herein on February 2 and 15, 1965.
3 The post office is sometimes listed as Ferndale or Grossinger , New York.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Whether Respondent further violated Section 8(a)(1) by denying the Union's
request for an opportunity to reply to antiunion speeches made by company repre-
sentatives to employees assembled in the hotel during working time.
4. Whether the representation election of May 2, 1964, should be set aside and a
new (i.e., third) election held.
B. Background; the Union's organizational drive and the representation proceedings
Grossinger's, founded over 50 years ago by Jennie and Harry Grossinger, is a
well-known year-round resort hotel in the environs of the village of Liberty, in
Sullivan County, New York. Paul Grossinger, son of Jennie and Harry Grossinger,4
is the general manager and vice president of the Company. Abe Friedman, brother-
in-law of Jennie Grossinger, is the maitre d'hotel and assists Paul Grossinger in
administering the affairs of the hotel. Albert Genhart is another of Paul's assistants.
Friedman's wife, Rose (Jennie's sister), is in charge of housekeeping. David Geiver is
headwaiter and Hyman Hoffer (another brother-in-law of Jennie Grossinger) is
assistant headwaiter. The Grossingers, Friedman, Genhart, and other members of
the family maintain their homes on the premises.
As hereafter indicated in greater detail, most of Respondent's employees (from
54.6 to 65 percent, depending on the season of year) reside and eat their meals on
company premises. Of those residing off the premises, 64.7 to 71.4 percent have
three meals daily at the hotel. Respondent employed between 565 and 786 employ-
ees in the October 1963 to August 1964 period. The work force is at peak size during
the July and August summer "season."
Phil Kazansky, the Union's secretary-treasurer, began organizing Respondent's
hotel in October 1962. As hereafter related, Kazansky, assisted by other organizers,
sought to contact employees on and off the premises. In August 1963 the Union
picketed the hotel and distributed union literature at the front entrance. On Sep-
tember 13 5 it filed a petition for a representation election on which the Regional
Director conducted an election on December 14. In the meantime, as hereafter
detailed, Respondent delivered a series of antiunion speeches on the premises and
distributed antiunion literature.
The Union lost the December 14 election by 367 to 82, with 71 challenged and 2
void ballots; 522 out of approximately 606 eligible voters participated. On Decem-
ber 20, it filed objections to the election, based in part on Respondent's speeches
which, the Union charged, contained unlawful threats, promises of benefits, as well
as misleading information, all tending to interfere with the employees' free choice
of representatives. On February 12, 1964, the Regional Director set aside the elec-
tion and directed a new election, sustaining the Union's objection that Respondent,
in contravention of the rule laid down by the Board in Peerless Plywood Company,
107 NLRB 427, 429, had delivered an "election speech" within 24 hours before the
election. (The Regional Director found it unnecessary to pass upon the Union's
other objections.) On March 13, 1964, the Board denied Respondent's request for
review of the Regional Director's Decision and Direction of a Second Election.
In the second election, held on May 2, 1964, 508 of approximately 595 eligible
voters cast ballots. The Union lost the election 338 to 122, with 48 ballots challenged.
In its objections to this election, filed May 8, 1964, the Union requested that the
election be set aside because Respondent allegedly improperly influenced and inter-
fered with the employees' free election choice through interrogation, promises of
benefits, denial of union access to employees residing on company property for the
purpose of communicating with them, and refusal of union requests for an oppor-
tunity to reply to antiunion speeches made by company representatives during work-
ing hours .6 Since these objections involved matters alleged as unfair labor practices
in the complaint proceeding herein, the Regional Director (on behalf of the General
Counsel) issued his order of August 17, 1964, consolidating the representation and
complaint proceeding for hearing and determination by a Trial Examiner.
C. The speeches
After the filing of the Union's representation petition on September 13, Respondent
undertook an intensive campaign to defeat the Union in the election. Abe Friedman,
Jennie Grossinger's brother-in-law and the maitre d'hotel, was in overall charge of
4 Harry Grossinger is now deceased. Jennie Grossinger Is still active in the business.
s All dates refer to 1963, unless otherwise indicated.
6 Certain additional objections-among other things based on alleged grants of wage
Increases to influence the election outcome-were subsequently withdrawn.
S. & H. GROSSINGER'S INC. 237
the drive. Employees were requested to attend meetings at which Friedman-and,
on occasions, also Jennie and Paul Grossinger and Assistant Head Waiter Hoffer-
addressed them. The speeches-all on company time and property-were at times
made separately to each department-, and other times to the staff as a whole.
According to Friedman, he delivered speeches twice to each department before
October 1. The speeches became more frequent in the last 10 or 12 days before
the December 14 election, during which company officials met with the entire staff
six times and separately three more times with the laundry and kitchen help and
maids. The day after the election (December 15) company officials held a "victory"
meeting. No meetings were held with employees thereafter until the week before
the second (May 2, 1964) election, during which Friedman addressed all employees
twice-on April 25 and 30, 1964.8
1. Pre-December 14 speeches
A pervasive theme of the company speeches was that the employees, who had
always been regarded and treated as members of the "Grossinger family" (or "Greater
Grossinger family"), would forfeit that special status if they voted in the Union.
Emphasizing the Company's past beneficences and benevolences, Friedman asserted
that Grossinger's was the first hotel in the area to put into effect statutorily pre-
scribed minimum wage rates; that it had granted fringe benefits such as life insurance
and hospitalization; and that, as a kind and considerate employer, it had overlooked
some of their shortcomings and misdeeds. The following is typical of the character
of Friedman's personal appeal to the employees (speech of December 2):
Can anyone say that I even consciously hurt one person since I'm here? Haven't
I given many, many employees food and lodging and work until they were
placed? Haven't I tried to be a friend to all of you? ... I was ... only reflecting
to all the employees the good will, the understanding, the warmth that was
given to me in turn by Jennie and Harry, by Pop and Mom Grossinger who with
your help built this hotel that is today known all over the world. . . . Would
anybody here change their proud membership of the Grossinger organization
for a membership in the Union that takes away our freedom and privileges and
bind employees to union rules and by-laws ... fines and assessments. What an
exchange that would be. Well, I can't believe that anyone sincerely would want
to exchange this union's exaggerated promises which ... they can hardly hope
to fulfill for the security and benefits and working conditions and facilities and
freedom the employees now enjoy here.
Jennie Grossinger's personal appeals were in the same vein. She told the employees
on one occasion:
May I therefore appeal to you as friends of long standing and as members of
wonderful staff and the larger Grossinger family to stand by us. Trust us to
continue that wonderful warm friendship and feeling. Let us continue to grow
together. Let us try to increase our business for our mutual welfare and benefit,
yours and ours. As you can see we are now in the process of building a new
84-room six story building .9 ... Please vote on Election Day ... say No, we
will have no outside influences ... to dictate to you when you shall work and
how you shall work....
The close family and home relationship was a recurring topic in the talks of Jennie
Grossinger, who told employees on one occasion (for example), "Most of you will
remember the hard times and the hard work we have gone through together to make
this our mutual home that is today. I speak of this hotel as our home. I have never
looked upon this place as anything other than our home. Your home and my home."
7 Respondent 's departments are: laundry , repair and maintenance , advertising and
promotion , entertainment and guest relations, administrative and general , golf, pool,
canteen, bar , dining room , kitchen , rooms , and traffic.
8 AR company speeches since September 21, except the December speech delivered
less than 24 hours before the election , were tape recorded and thereafter transcribed.
Most speeches were delivered in the main dining room.
0 At this time , Respondent was constructing a new addition to the hotel . Mrs Gros-
singer dwelt on this theme in other speeches , stating in one , "You wait and see what will
happen in another year . We're going to have a new building .... We're going to have
a new night club which will mean that we will have more people and when we have more
people you do better business and so do we."
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In appealing for the employees' loyalty, Jennie Grossinger and Friedman repeatedly
attacked the "outsiders that have come to stir up, and . . . to break up our happy
home and relationship." In his December 12 speech, Friedman asked the group:
Will you contribute your dues, fines and assessments to a union which could only
seek to create disharmony among employees and stop the wheels of progress
and growth at the Grossinger hotel? In other words, are you going to pay the
union to stop and retard the progress at Grossinger's which means less steady
work.... Is this fair to the older employees and is it fair to the new employees
who are seeking to find a future here? . . . So you see everyone who worked
here and wants to work here has a stake in keeping the union out and permitting
the Grossinger to expand and create greater opportunity for service and
employment.
Friedman attacked the Union's claims and promises as "pure propaganda," warned
that the Union was "not interested" in them but only in dues, in large salaries, and
"in building up their welfare fund," and urged them to resist union pressures. Fried-
man especially denounced the Union's organizer, Phil Kazansky, as having been
associated with a convicted labor racketeer and as having repeatedly plead the Fifth
Amendment against self-incrimination when questioned by the McClellan Committee.
Friedman and Jennie Grossinger continually appealed to the employees to continue
taking up their problems-"personal problems, business problems"-with manage-
ment. Recognizing that the employees had justifiable grievances, Friedman prom-
ised that management would devote more time to their complaints in the future. He
told the employees that after Christmas or New Year he would set up a committee
consisting of himself and one or two other company officials to hear the employees'
grievances in a private office. The following is one of Friedman's typical statements
on this point: .
I must admit. We didn't have enough communication with all of you. We
should-you should have a free feeling of coming to me and I will appoint also
Hymie Hoffer who is going to be in the future in the grievance committee where
it will be taking place in the late breakfast room from Christmas week on and I
feel by doing this way we'll get to know you better. We're going to listen-
I'll listen to you....
Friedman's speeches frequently dealt with future benefits-in general as well as
specific terms. Referring to past benefits, Friedman assured the employees in one
speech that "there'll be many more of these benefits. I can't promise, but we never
made promises. We gave it to you, that is, the Grossinger Family gave it to you
without making an announcement. We just did it. And this is the way it's going
to be done," Friedman nevertheless did promise specific benefits, Thus, he told
employees in several speeches that he would take steps to improve the procedure for
handling convention tips-a major employee complaint. Friedman put it this way
in one speech:
I'm telling you again, I'm going to try and to see for the future that the tips
will be paid in advance and that you don't have to wait until you get yours. In
other words, we are trying to do something else with conventions and try to
see whether we can get one tip. Instead of individual tips we'll try to get a
house tip. By giving a house tip you'll have a better chance in getting some-
times better tips, in other words, extras.
He also promised to correct complaints among dishwashers, laundry help, and maids.
As to the maids, he promised to give them a day off during the summer and to cut
down on their requirement to wait around for late checkouts.io'
In some of his speeches, Friedman informed the employees that he was aware of
the identity of the active union workers and sympathizers. Thus, he said in one
speech, "I want to tell you, I know who the girls were active. I wasn't mad. These
girls were active; they hypnotize you to talk. You know, they're desperate." In the
same speech he remarked at one point, "We know who signed ... we're not mad at
anybody." In another speech, Friedman, after bemoaning the "hatred" generated
by the union organization campaign, said, "We want to cut it [the hatred] out. We
want to keep that happy feeling here at Grossinger's with one another. We're not
against anybody. If you signed, we forgive you. We know that you were present
[i.e., at a union meeting] and it's not going to be held against you because ...' when
it comes to vote, it's secret ... and I'm sure that the majority of us are going to vote
1O Friedman at times explained that the benefits he had in mind could not be effected
immediately , stating, "I can't do it now because you see, if I do it right now, the Union
will distort it. They will charge unfair labor practice."
S. & H. GROSSINGER'S INC. 239
no...." In what he thought would be the final election speech (December 12) 11
Friedman, after thanking the staff for its cooperation and expressing "hope" that the
election "will be to our advantage and yours," told the employees, "You have been
kind to me by taking an interest in making a lot of reports which I appreciate
very much."
Friedman and Jennie Grossinger made it clear, however, that the decision to vote
for or against the Union was up to the employees. As Friedman stated at one meet-
ing, "You have [the] right to do whatever your hearts tell you to do and you are
free to do whatever you want...." Continuing this theme, he later on in the speech
added, "As I told you, you must make up your own mind. Nobody can force you
to do what-whatever you want." He also assured the employees that there was no
substance to "rumors that those who signed up are going to be sent away or [be]
fired." Friedman stressed that he had no "grudges" against anybody, including those
who had signed union cards, "for we can understand the pressures that were put on
those employees," "and maybe some employees fell for their [the Union's] pie in the
sky promises." He said that he was "confident that you want to continue being a
proud member of the Grossinger staff and the larger family so that we can help all
to grow together and that you are ahead." In the speeches delivered just before the
election, he told the employees that the "best present that you can give [my wife] for
her 35th anniversary working at Grossinger's, is to vote No."
In his final remarks before the election on December 12, Hyman Hoffer (assistant
head waiter and a Jennie Grossinger brother-in-law) asked the employees "to give a
vote of applause to Abe Friedman for all the effort he's put into this campaign."
In the course of his introductory remarks, Hoffer referred to the disadvantages of
unionization of the hotel and urged the employees to vote in the election. Hoffer
also told the employees, "Over the years we've solved our problems and we've always
helped one another-in many ways-but I can't think what will happen should a
union get in here.... As far as some of us that's been here for many, many years
we know what our job has been. We always have the security of our job, but under
union conditions, we never know."
2. Post-December 14 speeches
As noted, the Union lost the December 14 election. The next day (December 15),
company officials (including Friedman, Hoffer, and Paul and Jennie Grossinger)
addressed the employees, thanking them for "the great victory." Hoffer remarked
that "we're happy to be united once again in this wonderful family which you're part
of, `The Grossinger Family.' " Friedman, describing his "heart . . . filled with
gratitude ... still somewhat under the emotional spell of it all," promised "a victory
party soon" and went on to say, "You have now given us the `Green Light' to go
ahead, to continue to build and to grow, for the growth of Grossinger's will, of course,
be your growth, steady work, more opportunities and benefits to you as the hotel
grows and improves." Paul Grossinger, after thanking the employees "for the
wonderful vote of confidence" and commenting on Friedman's "terrific" campaign
on behalf of the Company, remarked:
At this time, I don't want to make any promises to you; but, I can tell you that
we have certain things in mind, and certain things have been called to our
attention; things that you should have and that we are going to get for you. I
think that when we announce them-it's going to take us some time to get the
details together-when we announce them, I am sure that you will be pleased
to hear them.
Paul Grossinger announced a "staff party" for Monday, December 23. Elaine Gros-
singer Etess, Paul's sister, also addressed the employees, briefly emphasizing that she
regarded the employees as part of the "family" and as her "brothers and sisters."
Jennie Grossinger, addressing the assemblage as, "My big or larger Grossinger
Family," said in part:
This is a Family, and as you know, in every family there's misunderstanding,
a little time goes by. What happens? You forget all about what has happened.
And this is how I hope everyone of you will feel. Those who didn't agree with
us, fine, they had a right to express themselves just as those who did agree with
us had a right. Well, the majority won....
u Friedman unexpectedly called another meeting on December 13, within 24 hours of
the election.
240 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
And like a mother with her children, she loves her children, she loves .a11 of
her children, and that's how I feel about you.
And again, don't you ever forget that you are my larger Grossinger Family.
And don't hesitate, if you have anything that disturbs you, to come talk to me
because I will understand. I understand because I went through the mill. That's
right. So I hope from now on and always hereafter there will be a better under-
standing between you and me, like a mother with her children and herself.
So don't hesitate, come to me because I am with you, not against you. I am
with you because we without you are nothing, and the same applies to you,
without our leadership you, too, would not be part of this lovely organization.
And as time goes on, we are going to make you prouder and prouder and [as]
the Grossinger grows, I hope you will grow with us.
* * * * * * *
And, above all, remember that you're part of the larger Grossinger Family,
and I'm very happy to have you.
The remaining election speeches were delivered by Friedman within the week
before the second election, held on May 2, 1964. In his April 25 speech-addressed
to all employees-Friedman told the assemblage that "none of the issues has
changed. It's the same old story only 4 months later." Friedman urged the-employ-
ees not to be misled by the Union's "propaganda" and its "pie in the sky" promises.
He repeated the theme stressed in his first election campaign that the Union would
not be to their advantage. After commenting on the Regional Director's direction
of a second election, he said, "If the Union doesn't know when it's licked and puts all
of us to the trouble once again of going through another election, then let us make
this one for keeps." Friedman also reminded the employees that back in November
and December he had told them that the Company was building a new wing or
addition to the hotel "so that [there] would be more business and more fulltime
employment"-a statement they could now verify for themselves because the new
6-story building was near completion. He again asked for their "loyalty to Jennie
and Harry [Grossinger]."
In his final speech of-April 30,' Friedman repeated statements made in previous
speeches. He reviewed the disadvantages flowing from organizing the hotel and
recited the benefits they enjoyed. Friedman informed the employees that he would
not now reveal benefits in store for them because "if Grossinger's were to make any
promise to you of any kind before the election, or if Grossinger's were to give you
any other benefits before the election, or make any material changes in working
conditions, the Union would immediately run to the Labor Relations Board and shout
that Grossinger is guilty of unfair labor practices." Friedman again dwelt on the
theme that "Grossinger's considers you as part of its working family" and that the
"family have always been glad to listen to your problems and troubles, and we
have helped you and'advised you whenever it was possible'to do so." He asked the
employees to again "stand firm with Grossinger's" and to "reject these strangers"
in the second election, as they had done in the first.
3. Conclusions
The question whether certain employer conduct or statements are violative of
Section 8(a)(1) turns not on the motive for the conduct (as in a Section 8(a)(3)
case), but on its reasonable effect on the employees. "The test is whether the
employer engaged in conduct which, it may reasonably be said, tends to interfere
with the free exercise of employee rights under the Act." N.L.R.B. v. Illinois Tool
Works, 153 F. 2d 811, 814 (C.A. 7). See also N.L.R.B. v. Exchange Parts Company,
375 U.S. 405, 409. The Board and courts have repeatedly stressed that the question
as to whether particular statements were coerced cannot be determined in vacuo.12
The same expressions in different circumstances may carry totally different meanings
or implications. This is not to say that certain statements may not in themselves
either carry a coercive message or fall within the ambit of protected free speech or
argument. Normally, however, "determination of the exact nature and effect of
12 N.L.R .B. v. Morris Fishman and Sons, Inc., 278 F. 2d 792, 796 •(C.A. 3) ; N.L.R.B.
v. United Association of Journeymen and Apprentices , etc. (Daniel Construction Co., Inc.),
341 F. 2d 805 (C.A. 4) ; N.L.R.B. v. Harbison-Fi8cher Manufacturing Co., 304 F. 2d 738
(C.A. 5) ; Local 901, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America ( El Impartial , Inc.) v. Raymond J. Compton , 291 F. 2d 793, 797
(C.A. 1).
S. & H. GROSSINGER'S INC. 241
such statements can be made only with due regard for the context of the statements,
the characters and economic positions of those who heard it, and the relationships
existing between a company and its employees." Morris Fishman and Sons, Inc.,
supra.
Although for convenience and clarity I here treat Respondent's speeches under a
separate heading. I have evaluated the speeches in the light of the total situation,
rather than as disjointed events in isolation .13 Accordingly, in determining the ques-
tion whether the speeches were coercive, I have considered the totality of Respond-
ent's conduct in the organizational campaign, including its deep-rooted opposition to
the Union as evidenced by its speeches and other conduct discussed infra, the high-
ranking role of the managerial representatives making them, and the reasonably
inhibitory effect of the statements upon the employees to whom they were directed.
Tested by these criteria, I find that although Friedman's and other managerial officials'
election speeches were in most respects within the permissible bounds of employer
communication to employees, they included statements-some more subtly phrased
than others-which tended to generate fear among them as to the consequences of
exercising their lawful right to organize and otherwise tended to interfere with,
restrain, and coerce them in the exercise of that right.
(a) Among the coercive statements are:
(1) Friedman's statements on December 12 implying that the advent of the Union
at the hotel would "stop the wheels of progress and growth at the Grossinger Hotel";
and would "retard the progress" at the hotel and result in "less steady work." His
further statement in the same speech that "everyone who worked here and wants to
work here has a stake in keeping the Union out and permitting the Grossinger to
expand and create greater opportunity for service and employment." His remarks
in similar vein in the December 9 speech appealing to the employees to remain
"being a proud member" of the Grossinger larger family "so that we can help all to
grow together" and get "ahead." In my view, Friedman's expressions considered
in the context of Respondent's total conduct, are reasonably construable as fostering
the impression that continued prosperous employment was linked to the employees'
rejection of the Union in the forthcoming election.
(2) Hoffer's remarks on December 12 that although the Company and the employ-
ees have been able to solve their problems in the past, he "can't think what will
happen should a union get in here"; and that although the employees "always" had
"the security" of their jobs, under union conditions, we never know." The reason-
able and foreseeable effect of Hoffer's remarks was to engender fear of job security in
the employees in the event of unionization of the hotel.
(3) Friedman's repeated statements in various speeches promising future improve-
ments in working conditions , including more satisfactory convention tips arrange-
ments for waiters, a day off and less late checkout work for maids, and corrections
of dishwashers and laundry help complaints. Although it is true, as Respondent
points out, that Friedman's promises to remedy complaints were not "tied in" to the
way the employees "acted" toward the Union or in the election, this did not immunize
the conduct. Well-timed benefits or promises carry with them "the suggestions of a
fist inside a velvet glove" even though unconditional. N.L.R.B. v. Exchange Parts
Company, 375 U.S. 405, 409.
(4) Friedman's statement in his December 15 "victory" speech (after the Union's
defeat) that "you have now given us the `Green Light' to go ahead, to continue to
build and to grow, for the growth of Grossinger's will . . . be your growth, steady
work, more opportunities and benefits to you as the hotel grows and improves."
Friedman by this statement conveyed the impression that organization of the hotel
had an inhibitory effect upon the employees' future work opportunities and benefits.
(5) Paul Grossinger's statement in the same "victory" speech, that although he
was not yet ready to make any specific promises, "I can tell you that we have certain
things in mind . . . things that you should have and that we are going to get you,"
implying that the employees would be rewarded. for rejecting the Union in the
election.
(6) Friedman's statements in various speeches revealing that he knew which girls
"were active," "who signed," and who was "present" at a union meeting, and his
further remark in thanking employees for their "interest in making a lot of reports."
These statements tended to create the impression in the minds of the employees that
their union activities were under Respondent's surveillance.
13 This is also true with respect to other incidents alleged as violations and treated
herein separately under other headings.
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) I expressly find the following statements in the speeches of company repre-
sentatives noncoercive and privileged as free speech and legitimate argument:
(1) Friedman's and other management representatives' appeals to ignore union
"pie in the sky" promises, to reject the Union, and to vote "No" in the scheduled
elections.
(2) Company representatives' denunciations and characterizations of the Union's
organizers as "outsiders" and associates of "racketeers," and accusations that the
organizers were motivated by self-aggrandizement, not by employee interest.
(3) Appeals to employees to remain loyal members of the "Greater Grossinger
Family" and not to permit "outsiders" to disrupt the existing close relationship
between management and employees.
(4) Noncoercive references to existing benefits and past company actions, and
references to the expansion of hotel facilities already planned and in progress.
(5) Reminders to employees of past handling of employee problems and griev-
ances by management, appeals to continue discussing grievances with the Company,
and promises to set up a more effective grievance procedure in the future.14
I conclude that while the statements enumerated in "b" above evidenced strong
and deep-seated company opposition to the organization of the hotel, they were not
proscribed by Section 8(a)(1). I further conclude that the statements and remarks
enumerated in "a" constituted interference, restraint, and coercion within that section.
D. The petition to withdraw union authorization cards
The dining room employees were for some time concerned about possible liability
for assessments for back taxes (arising out of their failure to report income from
tips), some having received letters from the Internal Revenue Service. From time
to time they discussed the matter with company officials (including Paul Grossinger,
Friedman, and Headwaiter Geiver) who without success attempted to assist them.
Some of the employees then solicited aid from the Union. On August 28 (Wednes-
day), 27 or 28 dining room employees met with union organizers at Corey's Restaur-
ant in Liberty.15 Many went to the meeting after receiving assurance from fellow
employees that the subject matter to be discussed would be the tax problem. A
heated discussion ensued when the union representatives 16 informed the employees
that they could not investigate the tax matter until the Union was authorized to
represent them. At the suggestion of an employee, the union representatives tempo-
rarily left the meeting to enable the employees to discuss the matter among them-
selves. There then followed a general discussion of the advantages and disadvantages
of joining the Union. All but one employee ended up by signing authorization cards,
although some of those present were obviously antiunion.
The next day (August 29) some of the card signers had second thoughts about the
Union. Some felt they "perhaps acted hastily" and were "a little bit apprehensive or
guilty about signing these cards." Chester Stungis and Sy Voyce, two antiunion
employees who had signed cards, decided that they "might still do something." 17
The employees discussed the matter among themselves in the dining room. Some
went to Geiver, the headwaiter, and reported what had transpired at the meeting.
Geiver then met with the dining room employees and told them that they "were
rather foolish for what" they did, pointed to the favors he had done for them in the
past, explained how he and other company officials had tried to help them with the
tax problem, and asked why they had not talked to him before going to the union
meeting.- Employee Gorengood, a company witness, testified that she told Geiver
at the meeting that she "was sorry I had signed it [a union card] and I would like to
14J. if. Simplot Company, 145 NLRB 171, relied on by General Counsel, is inapposite.
There the employer's appeals to deal directly with management in settling grievances
were made over the head of the union, their already designated bargaining representa-
tive and, indeed, "while collective bargaining negotiations were in progress," 145 NLRB
at 172. Here, the Union was not yet selected bargaining representative. Nor is there
anything in company speeches evidencing intention not to deal with the Union respect-
ing grievances after its selection as majority representative. See Rish Equipment Com-
pany, 150 NLRB 1185.
15 August 14, 2 weeks earlier, a few employees got together to arrange this meeting.
16 Phil Kazansky (the local's secretary-treasurer and chief organizer), Al Vezina (an-
other organizer), and International Representative Richard Uhrich.
17 When Stungis, a witness for the Company, was asked on cross-examination whether
he was "afraid of being fired" if the Company discovered that he signed a union card,
Stungis replied, "It came to my mind."
S. & H. GROSSINGER'S INC. 243
retract my signature." She also testified that after she and the others discussed the
card signing Geiver asked, "What do you girls want to do," and further remarked,
"I don't know what Paul [Grossinger] would want to do." 18
Employee Mandel, a General Counsel witness still in Respondent's employ, credibly
testified that thereafter (Sunday, September 1) employee Voyce called her to the
"family table" (where members of the Grossinger family usually dine). Present
were Voyce, Friedman, and two unidentified individuals. A discussion took place
about getting up a petition to obtain the return of the authorization cards, one of
those present suggesting that it be put "in our own words. " Mandel testified that
she had known of the petition through an earlier conversation with Friedman in
which he mentioned getting the cards back. The conversation at the table ended
after Mandel and Voyce informed Friedman that they were going to meet other
employees at Dukes Restaurant to tell them that they "wanted to get out" of the
Union.19 Mandel and Voyce left with the understanding that the petition would
be typed up within a few days.20
On or about the same day, employee Stungis went to Pennsylvania and secured the
assistance of his former school teacher in drafting a petition directed to the Union
for the return of the authorization cards.21 Thereafter Voyce circulated the petition
among the card signers . The solicitation was done on company premises and, at
least in some cases, on working time. Of the 27 or 28 card signers, 26 signed the
petition. Voyce thereafter turned it in to Friedman.22
Friedman testified that he first learned of the petition when Voyce brought it to
him; that without looking it over he returned it to Voyce when the latter asked for
it back "to get a few more names"; and that he later again received it for "safe-
keeping," decided not to turn it in to the Union (to whom it was addressed) because
this would not be "fair to the girls." Friedman's prehearing statement (admitted
unqualifiedly into evidence as General Counsel's Exhibit No. 8), recites that Fried-
man told the dining room employees in one of his September speeches, "I was not
going to use the petition ... because I did not want them to be annoyed by telephone
calls or be bothered in any way and that I had decided just to keep it and not send
it to anyone."
On the basis of the entire record-particularly Mandel's credited testimony regard-
ing the conception and preparation of the petition at the "family table," the wide-
spread solicitation of signatures on company time and premises , the admission of
18 The above findings are based on the mutually corroborative and credible testimony
of General Counsel's witnesses Mandel, Reich, Ganter, and McMahon and of company
witness Gorengood and (in part) Geiver. Geiver admitted that he asked the employees,
"What did you do this for ," after detailing all he had done for them in the 23 years he
had been with the hotel , referring among other things to his introduction of the 6-day
week there-the first in the resort area-and his efforts ( although abortive ) to settle
their tax problems . On cross-examination , he also admitted telling the employees, "I
know you all signed cards , you were all down there ," but on redirect examination he
explained that he had gleaned this information from employees who had volunteered it.
Finally, he testified that after the employees told him that they went to the Corey
(union ) meeting the previous night "under false pretenses " ( supposedly to discuss in-
come taxes ) and that they "were forced into signing with the Union ," he told them, "I
can't do anything about that . . . . You know why you went there for-We didn't bar-
gain what we went there for."
18 The record shows that some of the dining room employees thereafter went to Dukes
to discuss the withdrawal of the union cards.
" Mandel 's testimony is partly corroborated by General Counsel's witness Gantner, who
stated she overheard part of the conversation at the family table. Voyce did not testify ;
an envelope containing a subpena for his attendance procured by Respondent was returned
unopened and marked refused. Friedman did not deny or explain any of Mandel 's testi-
mony concerning the family table conversation. He merely stated-in general terms-
that he had no knowledge about the initiation and preparation of the petition.
11The petition , dated Sepatember 2, 1964, reads: "We, the undersigned, employed
presently at The Grossinger Hotel, Grossinger , N.Y., after due consideration hereby with-
draw our signatures on the cards ( signed at a meeting held at Corey ' s Restaurant , Liberty,
N.Y., on August 28th , 1963 ) which we later learned were for membership in a Union.
This withdrawal is to take effect immediately , and cards returned to us."
as General Counsel witnesses Hotaling and Grippen testified that they first refused to
sign the petition and did so later only after Voyce told them that he was passing it around
for Friedman . Several company witnesses testified that they signed the petition volun-
tarily and without pressure.
217-919-66-vol. 156-17
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Geiver (Respondent's head waiter and Friedman's subordinate) that he knew of
the circulation of the petition by Voyce, Friedman's demonstrated interest in defeat-
ing the Union as the Company's chief campaign strategist-I do not credit Friedman's
testimony that he was totally unaware of the petition until Voyce handed it to him.
I find that Friedman, as Mandel testified, participated in the preparation of the
petition, and that Voyce thereafter acted as Friedman's agent in circulating it or, at
the very least , that Friedman, with knowledge of Voyce's activity, condoned and
encouraged it. I conclude that Respondent's conduct constituted unlawful intrusion
in its employees' self-organizational activities, violative of Section 8(a)(1) of the
Act.23
E. Other company conduct alleged to be interference, restraint, and coercion
General Counsel relies on the following additional conduct by Maitre d'Hotel
Friedman and Hetadwaiter Geiver as constituting employer interference, restraint,
and coercion.24
1. Abe Friedman
(a) Waitress Margaret Hotaling, formerly employed by Respondent, testified that
on August 29 (the day after the union meeting in Corey's Restaurant) Friedman
called her into the late breakfast room and talked to her privately for 10 or 15
minutes. Friedman asked her "what went on at the union meeting, what we did ...
who signed up for the Union." Further, according to Hotaling, several days later
Friedman. came up to her and told her that "they were working on a medical plan
for the hotel, for the employees."
(b) Waiter Chester Stungis testified that on the day after the August 28 union
meeting Friedman "called me down and asked me if I was at it, did we go to the
meeting, was I at the meeting."
(c) Chambermaid Mary Pazel testified that when she reported to work on'
December 13 (the day before the first election) she was directed to see Friedman in
the housekeeping department. According to Pazel, Friedman called her into the meat
kitchen and told her, "You know, we've always liked you" and asked her "if you're
in this or not." Friedman said that "there are rumors about you," explaining that
girls had come to him and said, "She did it the last time and she's doing it again.
She's a troublemaker." Friedman went on to say, "The last time they tried organizing,
you and your friends were supposed to have been active in the Union." Pazel
replied, "I am innocent of the first [organizational campaign several years back] but
I'm not so innocent of the second...." Friedman then commented that this was
all he wanted to know and "We're going to win anyway, we have 94 percent of
the vote."
(d) Chambermaid Carmen Kuen testified that a "couple of days" before the
December 14 election, Friedman told her that he knew the maids wanted a day off
in the summer and that they "didn't like checkers" (i.e., employees who periodically
spot checked their work), that he talked the matter over with Mrs. Friedman (his
wife, in charge of housekeeping), and that he would grant the employees' wishes.
Kuen further testified that the day after the election, Friedman held a tape-recorded
discussion with her about conditions at the hotel.25 In the course of the discussion,
Friedman asked Kuen why she alone of all five members of her family working at
the hotel was "the only one who voted against us." Friedman also asked her "if I
knew the girls who signed the cards." Kuen declined to name them, explaining that
according to Paul Grossinger's recent speech "everything is forgotten and forgiven"
and she "just wants to forget about everything." Friedman replied that there was
"no reason to be angry at each other" and explained that he wanted the information
as r further conclude that Geiver's statement at his August 29 meeting with the
waitresses that they were "rather foolish" for going to the Union the night before and
for not talking to him before doing so, also constituted interference and restraint within
Section 8 ( a) (1).
21 The enumerated conduct does not cover Respondent 's alleged violation in denying to
the Union access to the premises for the purpose of communicating with employees, and
in refusing it equal time to reply to company antiunion speeches . These matters are
covered separately , section F, infra.
Friedman had also contemporaneously been interviewing other employees and super-
visors concerning complaints about working conditions.
S. & H. GROSSINGER'S INC. 245
merely to guide himself in the future. Kuen added that Friedman also told her that
"it made no difference if you signed a card for the Union, you could still vote the
way you wanted to,'you didn't have to vote for the Union if you didn't want to."
(e) Waitress Edith Reich testified that a few days after the August 28 union
meeting, Friedman called her to the timekeeper's office. The union contract with
Respondent's competitor Concord Hotel before him,26 Friedman said that he was
"looking thrugh this ... to see whether there might be something [there] ... that
may improve things in our own place." He also said that "he would like to set up" a
"grievance committee" and asked what Reich thought about this. Reich replied that
she did not feel a committee was needed because whenever she had a grievance she
could take it up with Company Officials Geiver and Hoffer. Friedman also referred
to the "medical plan" at the Concord, stating that the Grossinger family had been
talking about a similar plan (or a life insurance plan), that the plan was still only
in the "planning stage," and that he was giving the Concord contract to the hotel
paymaster for study to see if there was anything in it which could be used to improve
conditions at Grossinger's.
(f) Kathryn Comisky, formerly employed as a maid, testified that on the day
before the December 14 election, Friedman spoke with her in the housekeeping
department, in the presence of Mrs. Friedman and the timekeeper. Friedman told
her that Grossinger's, unlike the Concord, "never had to pay back wages" because
"we have always paid a minimum wage." Comisky, a former Concord employee,
denied that the Concord had to pay her back wages. Friedman ended by telling
Comisky, "You're going to vote tomorrow and I want you to do the right thing for
us. You know what to do."
(g) Busboy David Olomo testified that a week or two before the December 14
election, Friedman told him to vote "No" and that he "expect[ed]" him to talk to
his Spanish-speaking friends "against the Union." Thereafter,Olomo, in the presence
of Friedman, spoke to 12 or 13 employees, telling them to vote "no." Several employ-
ees later remonstrated with Olomo, telling him that they wanted to vote for the
Union. According to Olomo, Friedman again asked him in the week before the
May 2, 1964, election to talk to the Spanish employees "to vote ... against the
Union." Although Olomo agreed he did not have the opportunity to do so.
Friedman did not contradict or explain any of the statements attributed to him by
any of the employees as described above. I credit the testimony of the employees.
2. David Geiver
(a) Max Ezratti, a waiter formerly in Respondent's employ, testified that. as he
was driving Headwaiter Geiver home one day in October, Geiver remarked how come
no pickets were around.27 Ezratti replied, "I don't know, it must be a holiday for
them." Geiver then asked, "They have approached you, talked to you about, come
to you?" Ezratti answered that they did not and that he felt "neglected."
Ezratti further testified that sometime before the December 14 election, after
attending a union meeting (at the home of employee Terwilliger), he happened to
discuss the Union with a fellow employee. Both agreed that they did not give "a
darn for the Union." Geiver happened to pass by and asked that they repeat the
remark. Ezratti complied. Geiver than said, "Never mind, we know you have been
going to all the meetings; you're one of them, so don't say you don't give a darn."
Geiver did not contradict Ezratti's testimony, which I credit.
(b) Employee David Olomo testified that about a week before the May 2 election,
Geiver drove him home and asked him "if any guy from the Union went to my
house." Olomo replied, "No." Geiver could not recall making the statement,
explaining that he had driven Olomo home on numerous occasions during the orga-
nizational drive, and just could not remember every discussion he had with him.
I credit Olomo's more definitive recollection of the event.
(c) Waitress Gertrude McMahon testified that several minutes before the dining
room opened on February 28, 1964 (about 6:55 p.m.), she was talking to employee
Maria Flin about a letter she wanted to forward to an employee no longer at the
hotel. According to McMahon, Geiver came over to her and said, "If you don't
stop talking about the Union, I'll throw you out" and called her a "wild name."
The Concord is the only organized hotel in this resort area.
n As already noted, the Union picketed the hotel during this period.
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McMahon retorted, "If you want to throw me out, you can throw me out ... this
is as good a 'time as any." McMahon also testified that Geiver returned a few minutes
later and yelled, "Stop soliciting for the Union. If you want to solicit the Union,
you can do so off the grounds." Geiver admitted talking to McMahon that evening
but testified that the dining room already was opened for guests and he therefore
broke up the conversation and instructed McMahon to attend to her station.28 He
further testified that "huddles" are commonplace in the dining room during working
hours, and that he and his captain frequently stopped them whether or not the subject
of conversation was organizational activity. He admitted that he "might have"
told McMahon that if she wanted to engage in any conversations she should "do it
on your off time."
Since I credit Geiver's testimony that the incident took place after the dining room
was open to guests and when McMahon was supposted to be on duty, I need not
resolve all of the conflicting details in the testimony of the two. McMahon admitted
at one point that "four people" already were in the dining room before Geiver began
"yelling" and that others were on their way in. Furthermore, as hereafter found,
Respondent did not bar solicitation during nonworking hours and I cannot lightly
infer that Geiver threatened the severe reprisals attributed to him even if he
erroneously assumed (as McMahon testified) that she was talking union on her
free time.
3. Conclusions
(a) I find that the following conduct by Friedman and Geiver interfered with,
or tended to interfere with, restrain, and coerce employees in the exercise of their
rights guaranteed in Section 7 of the Act:
(1) Friedman's interrogation of Hotaling concerning "what went on at the
[August 28] meeting" and "who signed up for the union."
(2) Friedman's similar inquiry of Stungis whether he had attended the union
meeting.
(3) Friedman's interrogation of Pazel whether she was involved in the current
organizational drive, coupled with his remarks about the rumor he heard concerning
her union activity several years before and the report that she was a "troublemaker."
(4) Friedman's questions to Kuen as to why she was the only one of her family
who voted against the Union and his request that she identify the girls who signed
cards.
(5) Friedman's statement to Olomo, before the first and second elections, that he
expected him to talk to the Spanish-speaking employees against the Union, thereby
in effect directing or instructing him to participate in the Employer's antiunion
campaign.
(6) Geiver's question to Olomo, prior to the second election, whether any union
representative had visited his home.
(7) Geiver's statement to Ezratti after the latter had indicated he did not give
"a darn for the. Union": "Never-mind, we know you have been going to all meetings;
you're one of them.... .
(8) Friedman's statement to Hotaling, shortly after questioning her as to what
had transpired at the August 28 union meeting, that the Company was working on a
medical benefit plan for the employees.
(9) Friedman's statement to Reich, after the August 28 meeting, that the Com-
pany was considering putting into effect a medical plan similar to that in the Union's
contract with the Concord Hotel and that Friedman was forwarding the Concord plan
to the hotel paymaster for further study.
The dining room, normally opened to guests at 7 p.m., is sometimes opened several'
minutes before then, especially when it is necessary to accommodate "a special party."
Waiters are required to report a half hour earlier (6:30 p.m.), when "working time
starts." During the 6:30-7 p.m. period waiters complete preparation of the tables and
eat their meals.
2D Southwest Shoe Exchange Company, 136 NLRB 247, relied on by Respondent is dis-
tinguishable in that there the instruction "to talk people out of voting for the union"
was given to a supervisor. As the Board stated, "Respondent, through its supervisors,
was privileged to try to dissuade employees from supporting the Union," 136 NLRB at
248. While the person asked to persuade other employees to refrain from voting for
the Union in Tennessee Coach Company, 84 NLRB 703 (also cited by Respondent), was
an employee, it appears that the request in that case was not, as here, tantamount to an
instruction or direction, 85 NLRB at 706, 738-739.
S. & H. GROSSINGER'S INC. 247
(10) Friedman's statement to Kuen, shortly before the December 14 election, that
he would rectify the maids' complaints about the "checkers" and about lack of days
off in summer months.30
(b) I find that the following conduct did not constitute unlawful. interference,
restraint, and coercion:
(1) Friedman's statement to Comiskey prior to the December 14 election that
the Grossinger employees, unlike the Concord help, never had to claim backpay and
his urging Comiskey to vote the "right" way. The statement constituted legitimate
argument and noncoercive appeal. _
(2) Friedman's discussion with Kuen concerning employee grievances at the hotel,
and his discussions with Reich about setting up a more effective method for resolving
grievance. (See supra, footnote 14.)
(3) Geiver's question to Ezratti in October whether the pickets had approached
him which, in context, was no more than a casual remark in an exchange of banter
between the two, and which neither tended to inhibit nor coerce.
(4) Geiver's direction to McMahon to stop alleged union solicitation in the dining
room and his alleged threat to throw her out if she failed to comply with his order.
As found, the incident occurred after the dining room opened for guests and during
working time. Geiver's remarks, therefore, constituted a reasonable exercise of
management prerogative. See Addison Shoe Corporation, 151 NLRB 650.31
In the light of all the foregoing and the entire record, I conclude that Respondent,
in violation of Section 8(a)(1), interfered with, restrained, and coerced its employees
through interrogation, veiled threats, implied promises of benefits, creating the impres-
sion of surveillance, and encouraging and soliciting employees to withdraw from the
Union.
F. Denial of access to company premises to noneinployee union -organizers
1. The physical premises and facilities 32
Grossinger's is a year-round hotel situated in a general resort area in the Catskill
Mountain region of New York.33 It is about 11/2 miles from the center of Liberty,
a village of about 1,170 acres and a population of 5,000. Liberty has the usual
small-town variety and department stores, markets, schools, and entertainment and
service facilities, as well as hotels containing meeting halls available for public use.
The local newspaper, The Liberty Register, is owned '(at least partly) by Milton
Blackstone; an employee or associate of Respondent and publisher of The Grossinger
Tattler. Adjacent to the hotel is an airport equipped to receive private and charter
planes and air service from New York.34
Respondent's main premises, spread over a 468-acre tract, consist of about 50 build-
ings having around 600 rooms for guests and over 300 rooms for more than 600 staff
employees.35 The main premises have a frontage of approximately 3,000 feet, are
5,000 feet on the rear, and 2,700 and 2,800 feet on each side. Surrounding the
'*In concluding that the above statements unlawfully inhibited employee organizational
activity, I have considered the statements-as previously the speeches ( supra, section
II, C, 3 ) In the context of Respondent's total conduct in the organizational campaign.
In so doing I have not overlooked the fact that Respondent had reassured the employees
in some of its statements that they had a free choice in the selection of the Union. "The
fact that such conduct is accompanied by assurances of free choice does not remove it
from the ambit of the statute when the record as a whole demonstrates the unlawful
purpose." N.L.R.B. V. Philamon Laboratories, Inc., 298 F. 2d 176, 180 (C.A. 2).
31 At the hearing I granted General Counsel's motion to withdraw the allegation in the
complaint that Respondent also violated Section 8(a) (1) through certain conduct of
Supervisor Speckhardt.
32 The findings in this and subsequent sections are largely based on undisputed and
documentary evidence.
33 Phil Kazansky, the Union's chief organizer, estimated that there were approximately
250 hotels in the area-of which 15 operated all year. As previously noted, only the
Concord Hotel is organized. Kazansky indicated that be had "access" to that hotel
before it was unionized in 1955.
34 One of Respondent's brochures (Facts and Figures) describes the airport as the
"Jennie Grossinger Airport." The record shows that Respondent deeded a portion of the
grounds in 1962 to the Liberty Airport Authority (which operates it) for the sum of $1.
15 Some of the buildings house both guests and employees ; in some cases the employees
use separate entrances. The average number of guests at the hotel during the year varies
from approximately 570 to 1,080.
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
property are roads (private and public), natural barriers (woods, underbrush, a stone
wall, and a lake), and (in places) fences 36 The main entrance to the premises is
reached by a company-owned road running about one-tenth of a mile onto the
property from State Highway 52. This entrance, commonly used by both guests and
employees, is guarded 24 hours a day "to make sure people who don't have any
business being on the premises are not there." 37 Persons other than guests, employ-
ees, or delivery men must obtain permission from the guard to enter the premises,
but permission usually is granted after clearing with the front office. Visitors of
guests and prospective patrons are allowed on the grounds at specified times and hours.
In addition to sleeping and dining facilities, Respondent maintains the usual recrea-
tional and service facilities of resort hotels. These include a lake, swimming pools,
skating rink, golf course; health club, dance studio, movies and playhouse, gift shops,
barber and beauty shops, laundry, and connecting radio cab service. The hotel also
has its own post office and postmaster,38 a Western Union station, a bus system for
transportation between buildings and facilities, auxiliary lighting and water supply
systems, a fire engine,39 synagogue, printing shop, accessory, jewelry and clothing
shops, a nurse, and facilities for banking by the staff.40 Maitre d'Hotel Friedman
testified that one of Respondent's advertising slogans is "Grossinger has everything."
Company employees are authorized to use guest facilities, and receive reduced rates
in the barber and beauty shops and special discounts in the clothing shops.
2. The resident and nonresident employees
As previously indicated, Respondent's work force falls into two categories: resi-
dent and nonresident employees. Many in each category have worked at the hotel
for years. In order to provide and maintain the continuity of services and facilities
required by the nature of Respondent's business, the hours of the employees are
necessarily varied and spread over various shifts, viz, split shifts, night shifts, and
long and short days. Thus, the dining room employees (waiters, waitresses, and bus-
boys) work a three-shift, 8-hour day, around breakfast, lunch, and dinner (8 to 10:30
a.m.; Ito 3:30 p.m.; 7 to 10 p.m. shifts); 41 the maids' 71/2-hour day consists of two
shifts (9 a.m. to 2:30 p.m., 6:30 to 8:30 p.m.); service desk employees work 7:45
a.m. to 12:45 p.m. and 6:55 to 11:45 p.m. (long day) shifts, and 12:45 to 6:45 p.m.
(short day) shifts-there also is a 11:45 p.m. to 7:45 a.m. night shift. On the other
hand, some employees, such as repair and maintenance men and car parkers work
less irregular hours.42 The great bulk of the staff works a 6-day week, with the
off, day staggered to provide continuity of available work force 43 -
As also heretofore noted, from 54.6 to 65 percent of the Company's employees,
i.e., 309 to 511 employees (out of 565 to 786-the size fluctuates over peak, slack,
-and mid-season periods), live on the premises in housing supplied by Respondent
.and receive their meals at the hotel44 The staff houses are spread all over company
ae Some of the fences are old and dilapidated, with gates left open most of the time.
37 Although "the usual route of ingress and egress for employees is the main -gate," it
is possible to, gain -access to the premises without passing the main entrance guard.
During the busy summer-season, weekends, and when there' are 'special entertainment' and
events at the hotel, security personnel and guards are stationed at other gates and
entrances. ."No trespassing" signs appear on one of the Company's buildings. and on a
gate or entrance to the golf course. '
38 The postmaster, employed and paid by Respondent, operates a "contract blanch,"
subject to postal regulations. -
39 Leonard Hayes, Respondent's "fire chief" attached to the security department, testi-
fied that he has a "brigade" consisting of 40 volunteer employees to assist 'him. Uni-
formed firemen from Liberty are brought in to handle the "crowds" at special perform-
ances and functions in the playhouse and public halls. In case of fire, the Liberty Fire
Department is called on.
4O Few employees avail themselves of these "banking" facilities handled by the com-
pany payroll office. Employees normally bank in Liberty.
41 These employees report a half hour before the dining room opens. Headwaiter
Geiver testified that employees sometimes remain beyond closing time to serve late
arrivals, explaining that the "dining room is not closed . . . as long as one person would
be in the dining room . . ." even as late as 10:15 p.m.
42 Repair and maintenance: 8 a.m. to 4:30 p.m., or 4 p.m. to midnight, or midnight to
8 a.m.; car parkers : 8 a.m. to 4:30, p.m., or 6 p.m. to 3 a.m.
Some employees work 2 full months without a day off during the busy summer season.
44 A pay deduction is made for lodging and meals. Dining room employees eat in the
main dining room before it opens for guests. Other employees eat in the staff dining
room or staff cafeteria.
S. & H. GROSSINGER'S INC. 249
property, some close to and other distant from highways 45 Many of the resident
employees testified that they lead a relatively normal life on the premises and regard
Grossinger's as their "home." 46 Because of the complete variety of facilities on
the premises (including laundromats, drycleaning pickup, and recreational facilities),
most resident employees seldom leave the hotel during mornings and afternoons
except for irregular brief visits to Liberty to take care of personal business, or to
shop or to bank.47 Many spend their days off on the premises while others visit
homes or relatives in Pennsylvania or New York.48 Those who do not spend their
evening free time at home on the premises (e.g., viewing television, reading, attending
to chores, or ,watching hotel entertainment) go to Liberty or nearby areas to bars,
restaurants, movies, or other amusement places or to visit friends. Employees
working late evening hours on split shifts (e.g., dining room, kitchen, coffee shop,
and reservation desk employees) are not free for off-premises nocturnal excursions
until their departments close late in the evening.
About 90 percent of the nonresident employees reside in villages a mile or two
distant from the hotel-for the most part in Liberty or neighboring Ferndale; the
remaining 10 percent live beyond this area. They go to work by taxicab or privately
owned automobiles which they park in a specially designated employee lot on the
main premises. From 64.7 to 71.6 percent of the nonresident employees eat all
three daily meals at the hotel. Due to irregular and staggered workhours, many of
them (e.g., the dining room and kitchen help)' remain on the premises between shifts,
occupying their time resting, socializing, eating, and utilizing the various hotel facil-
ities available to them. Others (among them housewives and heads of households)
leave the premises between shifts.
The resident employees have no telephones in their rooms. Most of the staff
houses, however, have pay telephones where they may be reached if the caller knows
the particular number. They may also be reached through house telephones con-
nected with the hotel switchboard but not located in employee quarters.
Staff houses are subject to periodic* inspections by the Hotel's staff security man,
who has a passkey to all houses and rooms. The security officer is authorized to
check bundles and packages of employees. When a friend or relative 'seeks to visit
an employee, the gatekeeper checks with Maitre d' Hotel Friedman for approval of
the visit. The staff security man is under instructions to report to Friedman or house-
keeping any "strangers" or nonemployees seen in staff houses. He is also under
instruction to find out the business of any employee found in a staff house in which
he does not reside and to direct him to leave the house if he had no good reason for
being there.
3. The Union's organizational campaign
a. Initial attempts to reach employees
The Union began its campaign to organize Grossinger's in October 1962. Assist-
ing Business Agent Phil Kazansky in the earlier stages were -two paid organizers, Paul
Bednash and John Dugan. Bednash worked for Respondent as a weekend bellhop
during, part of the campaign (December 19, 1962, through March •10, 1963) under
Jack Greenberg, the Company's service manager. Greenberg was also co-owner of
the Lincoln Bar where Bednash was a Tuesday night part-time bartender. This bar,
about a half mile from the motel, was frequented by Grossinger employees including
the "Pennsylvania crew" with whom Bednash (himself a Pennsylvanian) was friendly.
Bednash solicited and secured signed cards at the hotel and at the Lincoln Bar.
On March 8, after learning of Bednash's union activity, Supervisor Greenberg
requested Bednash to stop soliciting at both places. Greenberg accused Bednash of
"just using me to get in to work [at the hotel] so you could organize"; said that if Paul
Grossinger "finds out about this," his (Greenberg's) job "will be in jeopardy"; and
told Bednash that the "best thing for me to do in all fairness for you and me is for
15 Three staff houses, with facilities for a total of 43 employees are located off the
main property, fronting on and accessible from the main highway (old Route 17).
40 As one employee put it, "I try to live a pretty normal life, as if I were living at
home." Another stated, "I live there. It's like my home. I call it ours." Among the
employees are couples-husbands and wives working on the premises and making their
home there.
47 Most employees take taxis, some get rides, and others drive their own automobiles ;
they rarely walk the 1' miles to the Liberty business area.
48 Respondent employs many weekend and part-time employees, especially during the
busy summer season; these are quartered and eat in the hotel only when working. From
35 to 50 of these (busboys, waiters, and waitresses) come from Pennsylvania, 50 or 64
miles away.
'250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
me to let you go and nobody [will ] find out about that." When Bednash retorted
that he would "throw up a picket line in front of Grossinger's," if he were fired,
Greenberg agreed to "reconsider" the matter.49 The next Monday (March 11), Use-
vitz, Greenberg's partner at the Lincoln Bar, instructed Bednash not to solicit there
any longer.'o
Bednash remained on the Union's payroll until June. In the meantime (April and
May), Kazansky retained another organizer, Roskowsky, to assist Bednash. In
June, the Union dispensed with the services of both because of the influx of transient
summer help at the hotel. In September, around the time of the filing of the Union's
election petition, Kazansky retained Alfred Vezina ("Frenchie") as a full-time orga-
nizer. Kazansky testified that he and his organizers diligently attempted to contact
employees "anywhere they possibly could" find them-in restaurants, bars, bowling
alleys, homes, and in streets. He explained, however, that unless employees were in
uniform or the organizer knew them personally,'they could not differentiate between
Grossinger employees and others ; and that he was unable to secure a list of Respond-
ent's employees 'until the end of the campaign in April 1964. ( See infra, section
F, 3, h.)
Kazansky recounted other obstacles he encountered in the organizational drive. In
September, the owner of Sam's Bar, a popular tavern patronized by Grossinger men,
informed him that he would no longer permit union solicitation there, since he did
not want "to get involved with Paul [Grossinger]. I get most of my customers from
Grossinger 's Hotel , and 1 don't want to get in trouble because of you"; Kazansky was
told that if any organizer were caught in the tavern the owner would "throw" him
out. Kazansky cited an earlier incident at the Blank tavern from which one of his
organizers was physically ejected after securing card signatures . On one occasion, in
September, Kazansky was rebuffed by an employee (Colicutt, a former unionized
Concord Hotel employee ) because he telephoned her at Grossinger 's; the employee
got "very excited," fearing that she "might lose her job by being called there." In
September and October , Kazansky and Organizer Vezina made several trips to the
Pennsylvania area-over 60 miles from Liberty-to communicate with weekend
Grossinger employees residing there; Kazansky .testified that he unsuccessfully sought
out employees in taverns and in homes and ultimately gave up this method of reach-
ing Grossinger employees.
b. Picketing and handbilling,
In the meantime , in August 1963, the Union -sought to communicate with employ-
ees through an informational picket line stationed at the front of the hill leading to
the main property entrance .5' The Union passed out 13 different leaflets and pam-
phlets as employees entered and left the premises by taxicab or private automobile 52
The literature among other things appealed to the employees not to be "fooled" by
Respondent 's "false promises " and claimed generosity; asked them not to be misled
by antiunion speeches and tactics ; pointed to working conditions the Union would
strive to improve if selected as bargaining representative ; and explained to employees
their rights and obligations as members of a labor organization . Both General Coun-
sel and Respondent called numerous witnesses to testify about the extent of distribu-
tion and acceptance of the union literature. It is clear , and I find , that as expected
some employees refused to take any literature , some accepted only one while others
received many handbills, and some who took handbills discarded them without read-
'B The above findings are based on Bednash 's uncontradicted , credited testimony ;
Greenberg was not called as a witness . Bednash testified that although he was allowed
to work the weekend after this incident, he was not recalled to work subsequently. The
complaint does not allege and I do not have occasion to decide whether Greenberg's
conduct was violative of Section 8(a) (1) or (3) of the Act. Furthermore , it is clear
that the conduct in question is outside the limitation period of Secton 10 ( b) of the
Act. Nevertheless , "the earlier events may be considered as illuminative of the true
character of later events within the limitations period. " N.L.R.B. v. Textile Workers
Union of America, AFL-CIO (Fitzgerald Mills Corporation ), 313 F. 2d 260 , 264 (C.A. 2),
cert. denied 375 U.S. 834.
w Usevitz , a company witness, admitted telling Bednash to stop the card solicitation.
He explained that he made his request after getting complaints from antiunion employees
that "they didn't want to be bugged by the Union."
n In early September the picket signs were changed to reflect an unfair labor practice
objective . The picketing continued until December 1.
5a As they left the property coming down the hill at Route 52 , the vehicles often
stopped for a red light.
S. &'H. GROSSINGER'S INC. 251
ing.°3 It is also clear that the Union surreptitiously placed some of its literature on
company premises-in employee areas such as staff buildings and the staff dining
rooms. The union men were "chased off the grounds" by Respondent's security
officer on their third attempt to distribute literature.
c. Union meetings
The Union also sought to reach Grossinger employees by inviting them to meet with
organizers in its rented room in the Lincoln Motel, about 1 mile from Grossinger's.
During the week preceding the December 14 election, the Union rented a second
room to hold "open house" so as to enable the organizers to explain "personally" its
literature and to tell them what the Union was "trying to accomplish at the Grossinger
Hotel"; 75 to 90 employees visited the motel during "open house" week.
Apart from meetings with employees in the Lincoln Motel and an earlier meeting
with the dining room employees at Corey's Restaurant on August 28 (supra, section
D), the Union. held only one other meeting during the campaign. The meeting-
in the home of employee Terwilleger, 15 miles from the hotel-was attended by
about 30 employees. The Union later arranged for another meeting at the home of
employee McMahon, who lived in Liberty, but no one showed up. This meeting,
like the Terwilleger meeting, was publicized by word of mouth.54
d. Unsuccessful attempts to obtain employee lists
Prior to the December 14 election, the Union tried unsuccessfully through one of
the employees to secure a list of names and addresses of the hotel employees by
photographing Respondent's timesheets. In addition, one of the employees asked
the timekeeper for copies of the sheets, but this was refused. Later, at the preelection
conference Respondent denied the Union's request for a copy of the list of eligible
voters (606 employees were eligible to vote•in the election). Kazansky indicated that
since he had no complete list of names of the resident employees, he decided not to
send mail to any known Grossinger employee at the hotel, for fear that "the hotel
would be able to spot" the union sympathizers.
e. Denial of union access to premises for purposes of organizing and
communicating with employees
On December 9, the Union requested of Respondent an opportunity to respond to
the antiunion speeches made by the Company' s representatives on the premises dur-
ing working hours (supra, section C). Kazansky stated in his telegram, "The man-
agement in the persons of Mrs. Jennie Grossinger and Mr. Abe Friedman are making
statements and charges to the Grossinger employees which are prejudicial to the
Union. On behalf of Local 343 demands are now made for equal time to meet with
your employees on your premises before Dec. 14, 1963 and in open debate to discuss
your contention." The next day, the Union's attorney repeated the Union's request
for "equal opportunity to address workers on your premises in order to neutralize
your prejudicial remarks." Respondent did not respond to either request.
After its defeat in the December 14 election and during pendency of its objections
to the election in the representation proceeding, the Union continued to maintain
contact with the Grossinger employees. As already noted, on February 12, 1964, the
Regional Director directed a second election. On February 26, the Union asked
permission to enter Respondent's premises for the purpose of communicating with
its resident employees. The Union wrote:
As you know our Local Union has for the past several months been attempting
to organize your employees so that we may be designated as their collective bar-
es The reluctance of some employees to accept union literature is evident from employee
testimony that leaflets were "pushed" or "thrown" in the cars through windows. One
employee testified that after receiving some literature, "it got too annoying. I rolled
my window up after that." Another employee, who did not receive literature from
pickets, testified, "I was in a taxi ; we went through . . . You know the taxi was going
so fast that I didn't have any chance to."
64 Kazansky attributed failure of the McMahon meeting to "past experience." It will
be recalled that sometime after the Terwilleger meeting employee Ezratti was informed
by Headwaiter Geiver that he knew Ezratti attended it. Friedman likewise told em-
ployees that he knew who attended union meetings. One of the men at the Terwilleger
meeting was Chester Stungis (Terwilleger 's son-in-law), an antiunion employee, who,
according to Kazansky, reportedly "brought back" to Friedman whatever transpired at
the meeting.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining representative . In view of the necessity of the security features required
by your Hotel by virtue of its large acreage, our representatives have been unable
to meet with and discuss with the many employees who reside on the Hotel
grounds the features of trade unionism. Our representatives on a number of
occasions have been approached by some of your employees who questioned us
as to why they cannot hear the Union's side of the- story although in recent
months they have been continually apprised by their Employer of the position
taken with regard to representation by our Local Union.
In view of the fact that a large segment of your employees are not being
afforded the opportunity to hear our side of the story pertaining to the advan-
tages of unionism , we most respectfully request that your instruct your security
forces to permit Union representatives to enter the grounds and areas of your
Hotel and to be afforded an opportunity to meet with and speak with your
employees.
It is our intention not to disturb or otherwise interfere with your continued
operation while meeting with your employees and our representatives will meet
with your employees only at those times when they are not actively engaged or
participating in their regular work.
Having received no reply from Respondent, Kazansky (and Organizer Vezina) went
to the hotel on March 5. Kazansky was initially refused entry by the security guard,
but was then cleared by permission of Friedman. After discussing the Union's letter
of February 26, Friedman refused to give Kazansky permission to meet with employ-
ees on the asserted ground that the matter was beyond the scope of his authority.
Friedman suggested that he see Paul Grossinger when he returned to the hotel in a
day or two.
On March 11, 1964, Kazansky and Vezina again went to the hotel. Again stopped
at the guard booth, Kazansky was permitted to see Paul Grossinger after securing
clearance from the front office. Kazansky reiterated his request to be allowed on the
premises to speak with employees during their "free time." pointing out that man-
agement had met with the employees during and after working hours and "it was only
fair" that he be given "the same privilege of meeting and talking with them on the
premises." Grossinger answered that he would consult his attorney and give the
Company's position in writing..
Thereafter, by letter dated March 17, 1964, Paul Grossinger wrote Kazansky:
This is in response to your letter, February 26, 1964, which I have not answered
sooner as I was out of town for a short while.
I must refuse your request to permit union representatives to enter the grounds
and areas of our hotel to meet with and speak with our employees.
This is not your first request, however. I think you are quite aware of the fact
that your organizational activities have gone on continuously. We are not
unmindful that one way or another, your organizers have gained admittance to
our premises surreptitiously, which, -in the past has well served your organiza-
tional purposes.
On April 27, the Union's attorney sent Respondent a telegram reading, "Fair demo-
cratic procedures require that both sides be heard. Once again ... request is hereby
made for equal opportunity to address your employees and reply to your attempts to
defame Local 343. Inaccessibility to grounds continue to make it impossible to present
Union's side. Urge you to grant Union representatives access to grounds so that work-
ers have an opportunity to hear the whole story and be able to make a free
determination."
At the hearing, Paul Grossinger asserted that he refused the Union access to the
grounds in reliance on "my statutory rights." He frankly stated that he gave specific
instructions to his chief of security to be notified if Kazansky "came on the premises,"
and said that "the order to watch out for [the union men] on the grounds started ...
around the date ... that the Union actually ... kicked off that campaign-after the
August 28 union meeting in Corey's Restaurant. Paul Grossinger explained that
Kazansky was welcome on the premises as a visitor or member of the general public
but not as union organizer.
Kazansky testified that as an organizer with 15 years' experience, he felt that there
was "no substitute for personal contact" with employees in getting "our message
across" to the unorganized. Thus, he explained, "There is no better means of orga-
nizing employees than by speaking to them personally, and being able to visit them
at their homes, being able to sit down with them and answer questions that they might
have, also, being able to ... explain to them what we had accomplished at the Con-
cord Hotel, which is only about 12 miles from the Grossinger Hotel .... I could sit
down with them or, more or less, give them the message, tell them what we can accom-
S. & H. GROSSINGER'S INC. 253
plish, that we're not here to hurt them, we are not here to hurt the Grossinger Hotel,
which is the impression ...... It is for this reason, he indicated, that "we are always
in search of addresses of people so we can visit other homes." Kazansky stated that
while he considered utilizing newspapers to convey the Union 's messages he did not
consider that medium an effective channel, explaining that the distribution of litera-
ture at the picket line "was more simple and direct." He testified that the radio was
also considered, "but because of the erratic hours at the Grossinger Hotel, there was
no particular time we thought a radio message could come across to the people, there
would be no special time when everybody would be off work so that we could reach
them."
f. Use of premises for charitable and other solicitation
Paul Grossinger acknowledged that he authorized nonemployee solicitations in the
past for charitable drives, such as for hospitals, on a "case by case basis." The record
shows that Respondent has allowed charitable solicitations for the City of Hope (can-
cer research), Hadassah, Red Cross, Heart Fund, Girl Scouts, and Elks Club.55 In
some cases, the organizations were permitted to display posters and wares and "to
hold a tea there at the hotel." In addition, Respondent permitted solicitation, post-
ing, and distribution of literature in the 1964 political campaign. Furthermore, there
is some commercial solicitation on the premises. The undisputed evidence shows
that one of Respondent's suppliers of uniforms (Slaver) sells employees shoes on
his weekly calls to the hotel. Another individual (Ester Gainey, a Grossinger
employee) testified, without contradiction, that Respondent's housekeeper (Rose
Friedman) gave her permission to solicit and sell Avon cosmetic products and that
she accordingly took orders from employees and made deliveries to them during her
lunch period. Other individuals and salesmen, such as laundrymen, drycleaners, and
television repairmen, are allowed to deal with employees on the premises.
Paul Grossinger further testified that Respondent allows on its grounds represent-
atives of unions other than the Charging Party-of craft unions whose members
work in the hotel under contract with Respondent or its suppliers (e.g., electricians,
plumbers, laborers, musicians, and carpenters)-to enable them to speak to members
and to conduct business with them. Explaining why these union officials are permit-
ted entry, Grossinger stated that Respondent's restriction against access applied only
"to the business agent who tries to organize employees" and that the restriction would
be invoked against "any union that came in and tried to organize."
g. Employee union solicitation and activity on the premises
The record establishes, and I find, that Respondent does not bar union solicitation
and union discussion on the premises by employees during nonworking time.
Although it has no published rule on the subject, it is clear, as Paul Grossinger credibly
testified, that the Company did not deny "any employee his right to talk to any other
employee about what they want" on the premises. One union adherent (McMahon)
testified that she solicited memberships in the dining room , as well as that she visited
"quite a few " homes in Liberty . Other prounion employees ( including Hotaling,
Comiskey, and Pazel) testified that they campaigned for the Union and conferred
with union organizers.as Witnesses for both General Counsel and Respondent stated
that they discussed the "pros and cons" of the Union on the premises, and indicated
that they had been approached to sign union cards. The advent of the elections in
December and May was a common topic of discussion , as was also the literature dis-
tributed by the Company and Union.
The record establishes, however, that many employees-particularly those residing
on the premises-did not participate in, and heard little or no, union discussions on
or off the premises. Some employees testified that they were not solicited for union
membership and were not contacted by either the Union or its employee adherents.
Some indicated that basically all of their information about the Union came from
company speeches. Some heard only antiunion discussions.57 In addition, as already
found (supra, section F, 3, b), many resident employees received no or few union
leaflets.
ss Friedman testified that the City of Hope conducted raffles every Saturday night.
be McMahon indicated , however , that she was handicapped in her union solicitation
because she "couldn't give them all the information" employees wanted. Pazel testified
that after once asking employees to sign cards, she "dropped " soliciting memberships.
57 There is evidence that some employees who manifested little interest in the cam-
paign-for or against the Union-felt obligated to attend company meetings . One such
employee testified , for example, "That [attendance ' of these meetings ] was quite necessary,
because we were asked to attend."
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
h. Mailing and distribution of campaign literature
Kazansky testified that about 2 weeks before the May 2, 1964, election the Union
was "very fortunate" in acquiring a list of names of Respondent's employees and the
departments they worked in. The Union then prepared a mailing list, using the
home addresses of those residing off the premises where this was ascertainable from
the local telephone book; in other cases, employees were identified by department and
"The Grossinger Hotel, Grossinger's, New York." On each of the dates April 27, 28,
and 30, 1964, the Union mailed 529 letters to employees at the hotel and 55 to
employees in Liberty.58 Included in these letters were leaflets distributed by the
Union on the picket line and on company premises before the December 14 election.
Of the three mailings, respectively 97, 131, and 198 were returned to the Union
unclaimed or undelivered.59
The Company distributed and mailed its own antiunion literature before each elec-
tion . Albert Genhart, Paul Grossinger's assistant in overall charge of the mailings,
testified that there were one or two mailings before the May election and three mail-
ings before the December election to some 600 or 700 unit employees. One of the
distributions was made direct through the pigeon holes and the rest through the
Grossinger post office. According to Genhart, considerable company literature, as
well as union literature, was returned unclaimed. In addition, it appears that the
Company posted some of its literature, in working areas around the premises. Further-
more, Maitre d'Hotel Friedman testified that he personally "handed out many pam-
phlets" on the premises before the first election. He stated that he and his security
officer distributed pamphlets the night before that election and that on the day of the
election they directed employees where to vote.
The Company's literature (some in the form of letters to the staff from Jennie
Grossinger) emphasized many points made by Friedman and other company officials
in speeches (supra, section C), including the growth of the hotel before the advent
of the Union, the advantages and benefits enjoyed by the employees as members of
"the larger Grossinger family," and the importance of repudiating "outsiders" seeking
to "break our family relationship." It attacked the Union as seeking "to dictate work-
ing conditions" and as interested only in large salaries for organizers and in collecting
dues and fees; denounced Business Agent Kazansky for associating with Teamsters'
James Hoff a and for failing to cooperate with the McClellan Committee; appealed to
the employees not be misled by the Union's "pie in the sky" and "phoney promises and
gimmicks"; attributed its withholding of employee benefits over the past months to
the Company's fears of upsetting the election and of inviting unfair labor practice
charges; and asked the employees to repudiate the Union in the election.
As noted, the Union failed to receive a majority of the votes in the second election
held on May 2,.1964, and thereafter filed objections to that election.
4. Conclusions respecting Respondent's denial of union access to company premises
for purposes of soliciting and organizing employees
a. Applicable principles
As noted at the outset, the issue presented on this phase of the case is whether
Respondent violated Section 8 (a) (l) of the Act by denying the Union access to its
premises for the purpose of communicating with resident employees concerning orga-
nizational matters. Respondent's statements to the Union establish, and Respondent
in effect concedes, that it maintains a policy or rule of excluding union representatives
from its premises for the purpose indicated. Its primary contention is that it was not
required to make its property available to nonemployee organizers for solicitation and
union discussion because the Union had alternative channels of communication with
employees. It contends in effect that under the circumstances it could, by virtue of its
proprietary rights, bar nonemployee organizers from any part of its property.
As the Supreme Court long ago pointed out in Republic Aviation Corporation v.
N.L.R.B., 324 U.S. 793, 798, "opportunity to organize" without "employer inter-
ference" is a fundamental statutory objective. "This is the principle"of labor relations
se Mall addressed to employees in the hotel is placed in bins (pigeon holes) outside the
housekeeping office, marked with letters of the alphabet. In heavy mailings-as before
the May 2 election-the overflow mail was stacked in large piles on top of the pigeon
holes.
w It was stipulated that of the 97 employees whose April 27 mail was returned, 58
voted and 39 did not vote in the May 2 election ; 187 of 131 involved in the April 18
mailings voted and 48 did not; and 142 of the 198 in the April 30 mailings voted and
56 did not.
S. & H. GROSSINGER'S INC. 255
which the Board is to foster." Ibid. The Court cautioned, however, that the right to
pursue organizational activity on company property is not absolute. The Board's
task in cases of this kind is "in working out an adjustment" between the employer's
right to control the use of his property and the employees' right of self- organization.
Id. at 797-798. "This is not a problem of always open or always closed doors for
union organization on company property.... Accommodation between the two must
be obtained with as little destruction of one as is consistent with the maintenance of
the other." N.L.R.B. v. The Babcock & Wilcox Company, 351 U.S. 105, 112.
In making the "accommodation between the two" rights, the Board has given weight,
in varying degrees, to such factors as the place of organizational activity (working or
nonworking areas ), whether it is conducted during working or.nonworking hours, the
type of activity (e.g., oral solicitation or literature distribution), whether it is applied
fairly and without discrimination, the nature of the employer's operations (e.g., factory
or department store), the impact on legitimate employer interests (e.g., production,
plant cleanliness, and employee discipline), and the kind of employer counter-
campaign, if any (coercive or noncoercive antiunion conduct).60 In Babcock &
Wilcox, supra (and its companion cases, N.L.R.B. v. Seamprufe, Inc. (Holdenville
Plant), and Ranco, Inc. v. N.L.R.B.), the Court held that "proper adjustments" of
competing employee and employer rights also require taking into account the question
whether the persons conducting organizational activity on company property are
employees or nonemployees. As a general rule, an employer cannot prohibit his
employees from engaging in union discussion and solicitation during nonworking
time on company property, absent a clear showing by the employer that "unusual
circumstances" make some limitation on that right necessary in order to maintain
production or discipline. Republic Aviation, supra, 804; Babcock & Wilcox, supra,
113.61 This principle applies even absent a showing that "alternative means of com-
munication" exist off the premises. N.L.R.B. v. United Aircraft Corp. and Whitney
Aircraft Div., 324 F. 2d 128, 130, 131 (C.A. 2), cert. denied 376 U.S. 951. But, as
held in Babcock & Wilcox, 351 U.S. at 113:
... no such obligation is owed nonemployee organizers. Their access to com-
pany property is governed by a different consideration. The right of self-
organization depends in some measure on the ability of employees to learn the
advantages of self-organization from others. Consequently, if the location
of a plant and the living quarters'of the employees place the employees beyond
the reach of reasonable union efforts to communicate with them, the employer
must allow the union to approach his employees on his property.
Later, in N.L.R.B. v. United Steelworkers of America, CIO (Nutone Inc.), 357 U.S.
357, the Supreme Court elaborated on this point. The Court held that although a
union could not "as a matter of abstract law, under all circumstances" insist on "every
possible means of reaching the minds of individual workers," nor insist on "a medium
of communication simply because the employer is using it" (id. at 364), nevertheless
when "an imbalance in the opportunities for organizational communication" is shown,
the employer must make his property accessible to outside organizers. Id. at 362. A
"vital consideration in determining the validity of a no-solicitation rule" is whether
such rule "truly diminished the ability of the labor organizations involved to carry
their messages to the employees," as well as whether the rule "has been fairly applied."
Id. at 363.
The importance of affording union organizers opportunity to contact employees on
company property if reasonable access to them is otherwise difficult or impracticable
is self-evident. As the Board has noted, experience demonstrates that "self-organization
can be and is severely hampered by lack of assistance from trained, full-time orga-
nizers.... [T]he Supreme Court said in Thomas v. Collins, 323 U.S. 516 ... [the
right of employees to organize under Section 7] include[s] their right fully and freely
to discuss and be informed concerning [their] choice [of representatives].... Neces-
sarily correlative was the right of the union, its members and officials ... to discuss
80 Republic Aviation Corp., supra; Stoddard-Quirk Manufacturing Co., 138 NLRB 615;
The May Department Stores Company, et at., 59 NLRB 976, enfd. 154 F. 2d 533 (C.A. 8) ;
United Cement, Lime and Gypsum Workers, Local 291, AFL (Monolith Portland Cement
Company), 94 NLRB 1358; N.L.R.B. v.' Hill & Hill Truck Line, Inc., 266 F. 2d 883, 886
(C.A. 5).
01 Department stores and like establishments have been exempted from this rule. Be-
cause of the nature of their business they may prohibit union discussion and solicitation
on selling floors and related traffic facilities even on nonworking time. See The May
Department Stores Company, et al., 59 NLRB 976, 979-981, enfd. 154 F. 2d 533 (C.A. 8),
cert. denied 329 U.S. 725 ; Marshall Field & Company, 98 NLRB 88, modified on other
grounds 200 F. 2d 375 (C.A. 7).
256 DECISIONS OF NATIONAL' LABOR 'RELATIONS BOARD
with and inform the employees concerning matters involved in their choice." [Empha-
sis supplied.] Marshall Field & Company, 98 NLRB 88, 97, footnote 21, modified in
other respects 200 F. 2d 375 (C.A. 7). To the same effect, see N.L.R.B. v. Lake
Superior Lumber Corporation, 167 F. 2d 147, 151 (C.A. 6).
b. Inadequacy of off-premises channels of communication
As noted, under the test laid down by the Supreme Court in Babcock & Wilcox an
employer's duty to afford access to nonemployee organizers for organizational pur-
poses turns on the question of whether "the location of [the] plant and the living
quarters of the employees place[d] the employees beyond the reach of reasonable
union efforts to communicate with them." 351 U.S. at 113. See also Joseph Bancroft
and Sons Co., 140 NLRB 1288, 1290. Determination of this question is, of course,
more complicated in some cases than in others. Thus, for example, in lumber camp
and "company town" situations, employees are usually so isolated from normal con-
tacts that customary channels of communication with union organizers are closed.
The Board and courts have consistently held that in those cases outside organizers
must be afforded entry on company property for organization purposes, subject to
reasonable regulations. N.L.R.B. v. Lake Superior Lumber Corporation, supra;
N.L.R.B. v. Stowe Spinning Company, et al., 336 U.S. 226, 232. In such cases circum-
stances are such "that union organization must proceed upon the employer's premises
or be seriously handicapped." Republic Aviation Corp. v. N.L.R.B., supra, 799.
N.L.R.B. v. Lake Superior, supra, 152. At the other end of the spectrum is the typical
industrial plant, located in an urban center. Employees in such plants usually work
regular shifts and hours and reside off company premises. Those cases do not
normally present unique problems of employee accessibility. The natural and normal
avenues of communication-including home visitation-are open to the union and,
absent special circumstances, its ability to carry the union message is not seriously
impaired.
The situation here-involving an all-year round resort hotel-falls neither wholly
within the company town-lumber camp category nor within the conventional indus-
trial plant category, although it partakes of characteristics and attributes of each.
Thus, a vast majority of Respondent's employees (54.6 to 65 percent, depending on the
season in the year) make their homes on the premises, passing virtually all of their
time there, as do employees in lumber camps. On the other hand, the Company's
property-only about I i miles from the center of the village of Liberty-is not so
isolated geographically as the typical lumber camp. For the minority of the employees
residing in the Liberty area, the hotel is more akin to a plant, although, as we shall
see, contact between them and the Union is also impeded because, among other things,
they spend much of their free time on the premises due to split shifts, irregular hours,
and availability of meals, entertainment, and other facilities at the hotel. It is, how-
ever, the Union's inability by "reasonable attempts" to reach the majority resident
employees "through the usual channels" (Babcock & Wilcox, 351 U.S.105, 122) that
impels me to conclude that Respondent's policy or rule of absolute exclusion of orga-
nizers from company premises (including the employees' private residences) is invalid
and unlawful. For reasons stated below and on the entire record, I find that for all
practical purposes Respondent's exclusionary or "no-access" policy or rule virtually
insulated the resident employees against the union organizers, thereby depriving them
of their "ability ... to learn the advantages of self-organization" (Babcock & Wilcox,
supra).
To the approximately 309 to 511 resident employees (Respondent's work force
ranged from 565 to 786) the hotel premises were "home," as well as worksite. This
is where they ate, slept, rested, labored, and attended to other daily chores of life.
Like tenants, they paid for their homes, since Respondent deducted from their wages
for board and lodging. To be sure, the resident employees occasionally left the
premises for errands and visits but because of split shifts, varying off days, and erratic
hours, these excursions were isolated and unpredictable. Furthermore, spotting
individuals as employees was not feasible because, unless in uniform (some employ-
ees, such as waitresses and bellhops, work in uniform), they were difficult to distinguish
from hotel guests passing in and-out of the main gate-the common mode of ingress
and egress to all. In addition, transportation to and from the hotel was normally
by taxi or other automobile stopping at the gate only for a red light.
It has been said that the place of work is the "natural site where employees are
accessible for organizational efforts." Montgomery Ward & Co., Inc. v. N.L.R.B.,
339 F. 2d 889, 891 (C.A. 6), quoting from the Board's Decision in that case, 145
NLRB 846, 849. See also Bonwit Teller, Inc. v. N.L.R.B., 197 F. 2d 640, 645 (C.A.
2); Schneider v. State, 308 U.S. 147, 163; Joseph Bancroft & Sons Co., 140 NLRB
1288. The employee's home is also uniquely appropriate for receiving the union's
• "S. & H. GROSSINGER'S INC.-! 257
message. It stands to reason, as Business Agent Kazansky, with 15 years' organizing
experience, testified, that "there is no better means" of disseminating information con-
cerning unionization "than by speaking to [employees] personally, and being able to
visit them at their homes ... to sit down with them and answer questions ...." By
precluding the Union's organizers from visiting the homes of the majority of the
workers, Respondent seriously impaired its employees' ability to learn the advantages
of self-organization.
Off-premises communication with resident employees was significantly limited in
other respects also. As the record shows, the Union was unable to obtain a list of
names and addresses of Respondent's employees until almost the end of the second
campaign (April 1964); with the result that it could not mail literature to them until
that time. Its failure to secure such list also impaired its ability to invite employees to
meetings and to make off-premises appointments, even if this were feasible. Respond-
ent refused to supply such list and earlier attempts to secure one surreptitiously proved
unsuccessful. The Union had to depend on its organizers and sympathizers for infor-
mation on employee identity. As Kazansky testified, "We were always in search of
addresses of people so we can visit at their homes."
Contact with employees off grounds, as at meeting halls and taverns, were likewise
not without difficulty. The record shows that during the first election campaign union
organizers, while attempting such contact, were physically ejected or threatened to be
ejected from at least three taverns in the Liberty area. While the Union might perhaps
have acted more diligently in attempting to arrange meetings in halls or off-premises
homes of union sympathizers, it appears that those channels of communication, like
others, were impaired by the Union's inability to muster sizable attendances, not only
because it could not invite them as is ordinarily possible by mail or telephone, but
also because of the erratic workhours and the employees' limited and staggered free
time. One meeting held in a union sympathizer's home, was attended by only 30
employees; a second, scheduled in another home, drew hardly any; and visits to the
Union's rented motel quarters were sparse-only 75 to 90 of the approximately 600
unit employees making an appearance during "open house" week before the first
election.
Contacting resident employees in their "homes" by telephone, was unfeasible and
ineffective. Employee rooms are not equipped with telephones. While there are pay
telephones in many staff homes, incoming calls cannot be made or completed unless
the caller knows the particular telephone number and the employee called-who may
be in other areas of the hotel-is fetched or told to call back the party calling.
Reaching employees by calling the main hotel number involves public or no-privacy
routing' through the hotel switchboard. The record shows that one attempt early in
the organizational campaign to telephone an employee at the hotel so upset and
infuriated the employee that the Union decided it was inadvisable to use the telephone
as a method of communication.
Attempts to converse with and solicit employees at the foot of the hill (outside the
main property entrance), as employees left to attend to errands or to visit friends off
premises, were equally ineffective. Since, as the record shows, resident employees (as
well as others) normally left the premises by taxi-or other automobile, even in their
infrequent trips away from the hotel, solicitation or discussion at the gate would have
required halting moving vehicles (or delaying them if they stopped for the red light)
to draw employees' attention-hardly a practicable or effective way to communicate
with employees concerning organizational matters.
As found, prior to the first election the Union distributed leaflets and handbills
while picketing at the main property entrance. The literature was usually thrown into
open cars or individually handed to occupants of vehicles as they drove off the prop-
erty. Union literature was surreptitiously placed in staff houses and other areas also
until the Union distributors were caught and chased off the grounds. When, shortly
before the second election, the Union finally succeeded in obtaining a list of employ-
ees, it attempted to reach the employees through three mailings. The record shows
that a substantial number of the mailings to unit employees were returned unclaimed
and undelivered. Even apart from this circumstance, it is clear that dissemination of
literature-although an important campaign method, particularly for counteracting
employer antiunion literature-is hardly the equivalent, and certainly not a feasible
substitute for, oral solicitation and discussion in which the organizers can systemati-
cally present and argue the union viewpoint. Apparently Respondent was of this
view, considering the frequency and regularity of its speeches to its assembled employ-
ees and its other oral appeals to individual employees. Literature distribution or mail-
ing is clearly not an adequate alternative channel by which to neutralize an employer's
antiunion solicitation . (See infra, footnote 71).
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The same is true with respect to newspapers and radio-two other technically
possible avenues of communication considered but not utilized by the Union. Apart
from the expense involved, they lack the efficacy of personal and direct contact.
Moreover, the local village paper, owned by an employee or associate of Respondent
itself, was hardly a practicable medium for dissemination of prounion propaganda;
and, as Business Agent Kazansky testified, "because of the erratic hours at the
Grossinger Hotel, there was no particular time we thought a radio message could
come across to the people."
Although, as stated, it is the circumstance of the uniquely limited opportunities to
canvass and reach resident employees which impels me to conclude that Respondent's
absolute no-access rule seriously and unfairly impeded the Union in presenting its
side of the story to the employees and in responding to Respondent's antiunion
speeches, union communication with nonresidents was also impaired by many of the
factors already discussed. For example, the Union's inability to obtain a list of
Respondent's employees hampered it in arranging home visitation. The staggered
and late working hours of nonresidents required them to remain extended periods
on the premises. The availability of food and recreational and other facilities at the
hotel likewise contributed to long stays on company property. It will be recalled that
from 64.7 to 71.6 percent of the nonresidents eat all three meals at the hotel; others
have one or two meals there. Finally, the efficacy of some of the other available
media-e.g., handbilling, mailings, newspapers, and radio-is here no less limited as
alternative off-premises channels of communication with respect to nonresidents as
with respect to residents.
Applicable here is the observation in N.L.R.B. v. United Aircraft Corp. and Whit-
ney Aircraft Div., 324 F. 2d 128, 130 (C.A. 2), cert. denied 376 U.S. 951-where
the Court considered the validity of a no-solicitation rule in a different, but relevant,
context:
The chances are negligible that alternatives equivalent to solicitation in the plant
itself would exist. In the plant the entire work force may be contacted by a
relatively small number of employees with little expense. The solicitors have
the opportunity for personal confrontation, so that they can present their message
with maximum persuasiveness. In contrast, the predictable alternatives bear
without exception the flaws of greater expense and effort, and a lower degree of
effectiveness. Mailed material would be typically lost in the daily flood of
printed matter which passes with little impact from mailbox to wastebasket.
Television and radio appeals, where not precluded entirely by cost, would suffer
from competition with the family's favorite programs and at best would not com-
pare with personal solicitation. Newspaper advertisements are subject to simi-
lar objections. Sidewalks and street corners are subject to the vicissitudes of cli-
mate and often force solicitation at awkward times, as when employees are
hurrying to or from work.
Also in point is the Board's decision in Joseph Bancroft & Sons Co., 140 NLRB
1288-a representation case. The Board there found that the employer "unlawfully
interfered with the self-organizational rights" of its employees and set aside an elec-
tion because the company refused the union access, for organization purposes, to
company-owned property where 101 of the company's 886 employees maintained
"homes." Applying the Supreme Court's Babcock & Wilcox case, the Board stated
(140 NLRB at 1290-1291) :
The possibility that the [union] might have reached some of the employees
living on company grounds by telephone or other means and that employees
might voluntarily have visited the [union's] meeting hall is not, in the circum-
stances of the instant case, a feasible substitute for personal solicitation. Here
an organizational campaign could not be carried on effectively without the
"seeking out" of employees and their solicitation to membership by direct contact
by experienced organizers. Access to the homes of employees was therefore
vital to organizational efforts.
We hold that, because of the location of employees' living quarters on com-
pany premises, the employees residing in such homes were, as stated in Babcock
& Wilcox, supra, placed "beyond the reach of reasonable union efforts to com-
municate with them," and the Employer was therefore required to permit the
[Union] access to the employees on its property. •
Attesting further to the ineffectiveness of the methods of communication to which
the Union was relegated by Respondent's absolute no-access rule was the testimony of
many witnesses called by Respondent as well as General Counsel. These witnesses,
S. & H. GROSSINGER'S INC. 259
particularly the resident employees, testified that they had only minimal contact with
the Union and its sympathizers-and in some cases none at all. Some indicated that
their knowledge of the organizational campaign was derived solely from company
speeches on company time and property.
c. Respondent's contentions respecting adequacy of alternative
channels of communication
(i) Respondent contends in its brief that the Union did not make "reasonable
attempts" to reach the resident employees through off-premises channels of com-
munication, under the principles laid down in Babcock & Wilcox and, therefore, that
it was not legally obligated to allow the Union access to its premises for organizational
purposes. At the same time, however, Respondent takes the seemingly inconsistent
position that the Union "did communicate with employees" and, indeed, "was as suc-
cessful in getting signed application cards from those employees who lived `on' as it
was from those who lived `off' " the premises.
Respondent's own recitation of the various avenues by which the Union attempted
to communicate with Respondent's employees off company property-all discussed
in the preceding section-fully support a finding that the Union made "reasonable
attempts" to carry its message to the resident employees. This is not to say, as
Respondent points out, that the Union could not possibly have exerted greater efforts
in this direction. Thus, as Respondent suggests, the Union might have employed more
organizers to spearhead its campaign-a step that possibly might have augmented
its contacts, particularly with nonresidents in the Liberty area. The question, how-
ever, is not whether the Union could have done more, but whether it reasonably did
enough, under all of the circumstances of the case. I find that the Union amply
satisfied this requirement so far as the resident employees were concerned. Indeed,
because of their special and unique situation-the resident employees leaving the
premises only rarely and irregularly-the effectiveness of any additional personnel
and off-premises communication channels the Union might have mustered, would, as a
practical matter, in any event have been severely limited.
(ii) Respondent also points to the fact that, despite its exclusionary rule, union
organizers did in fact succeed in entering the premises, soliciting employees, and
distributing literature. It explains that the premises are open, unguarded, and acces-
sible at many points, suggesting-at least implicitly-that outside organizers were
able to contact, and contacted, employees on company property. The record shows,
as previously found, that union organizers entered the premises three times to pass
out literature but were "chased off the grounds" when caught by Respondent's security
officer. It also appears that Angel Gonzales-a union member employed at another
hotel-visited Spanish-speaking friends and relatives in the hotel various times before
the first election, and talked to them about joining the Union; Gonzales, too, was
"chased" away by the security man after he was told not to talk union."' And Paul
Bednash, a paid organizer, had solicited employees on the premises on a regular basis
while employed as a part-time bellhop between December 10 and March 10 (supra,
section F, 3, a) and thereafter also when "nobody saw" him.
Contrary to Respondent's suggestion, the fact that the Union surreptitiously, irregu-
larly, and in violation of the Company's no-access rule, managed to reach employees
in the hotel, does not establish that the Union had reasonable, let alone effective,
access to the premises. Rights that must be exercised secretly and stopped on dis-
covery are not rights in any real sense. Moreover, "The [Union] was not required to
risk prosecution for trespass in order to assert its right to organize." Joseph Bancroft
& Sons Co., 140 NLRB 1288, 1291.
(iii) Nor does the fact, also relied on by Respondent, that the employees had
"unlimited" opportunity "to discuss the union among themselves" on the premises,
eliminate or cancel out the Union's right of access to the premises to consult with
employees. As noted supra, section F, 4, a, contact with outside, experienced, trained
organizers familiar with the many facets of organizational problems and in a position
properly to inform employees concerning their organizational rights, is vital to intel-
ligent exercise of those rights.63 The fact that employees talk to each other does not
eliminate the need for communication with outside professional organizers. Indeed,
it has been held that where an employer has designated certain facilities for communi-
°2 Apparently unaware of Gonzales' mission, Respondent's guard at the gate-not the
security man who chased him away-had allowed him to enter the hotel.
33 See supra, footnote 56, illustrating the inability and inadequacy of union employee
solicitors here to supply organizational information.
217-919-66-vol. 156-118
260 DECISIONS OF. NATIONAL LABOR. RELATIONS BOARD
cation with a union, he, may be required' to provide additional facilities; where it
appears that the union would otherwise be substantially disadvantaged with respect
to organization.64 Neither in Babcock & Wilcox nor in its companion cases (Seam-
prufe and Ranco), where the Supreme Court first laid down the access-to-company-
premises test for nonemployee organizers, was there any indication of absence of or
limitation on employee union discussions and organizational activity on company
premises.
(iv) Finally, Respondent contends that, "Belying the union's claim of lack of
access" is the alleged fact that the Union was just as "successful" in signing up resident,
as nonresident, employees. This contention is predicated upon the claim that the
Union in its representation petition filed on September 13, 1963, listed "350" as the
number of employees in the unit; and that Business Agent Kazansky testified he had
signed up 170 employees by that time, of whom 60 percent gave the Grossinger
Hotel as their address. I find the contention without merit.
To begin with, assuming the accuracy of its factual analysis, the most that Respond-
ent shows is that the Union had 102 cards from resident employees. This by no
means establishes that those cards were obtained off premises so as to warrant the
inference that the Union had adequate alternative channels for organizational activity.
On the contrary, the record is clear that Bednash, the Union's paid organizer, con-
ducted an intensive, although covert, solicitation drive on company premises during
the 3 months he worked there as a part-time bellhop; and that he thereafter continued
this activity circumspectly so as to avoid detection. At least one other nonemployee
(Gonzales) also solicited on company property until his activity was discovered and
stopped. Further, the 102 cards obviously include cards signed on August 28 by resi-
dent waiters and waitresses who sought out the Union to assist them with their income
tax problems, rather than as a result of off-premises canvassing. To be sure, some
cards were secured in taverns and in other places. However, the reasonable infer-
ence-and the one I draw-is that the great bulk were obtained on company property
by professional organizer Bednash surreptitiously in violation of the very rules which
Respondent here defends.
Moreover, the Union's statement on the petition that the unit comprised 350
employees is clearly incorrect. The stipulated evidence shows that the unit employ-
ees ranged between 565 and 786. Further, 606 employees were eligible to vote in the
December election. Accordingly, even if the Union had 102 resident employee cards,
these represented only a small percentage (17 percent) of the unit employees.65
Finally, although Kazansky indicated that 60 percent of the card signers gave
Grossinger's as their addresses, the evidence does not show whether they did so
because they resided there or because they worked there.
For these reasons, I reject Respondent's contention that the Union had adequate
and effective alternative off-premises channels of communication with resident
employees, as evidenced by the Union's "success" in signing up those employees.
d. Insubstantiality of detriment to Respondent from elimination of
its "no-access" rule
As noted at the outset of this discussion (supra, section F, 4, a), the underlying
problem presented in cases of this kind is proper reconciliation of competing employer
and employee rights. This, in turn, calls for determination of "what in fact would be
the prejudice to the interests of the employer in permitting access to [his premises],
and what would be the benefit to the employees, and whether the benefit prevailed
over the prejudice, or the prejudice prevailed over the benefit." N.L.R.B. v. Lake
Superior Lumber Corporation, 167 F. 2d 147, 152 (C.A. 6). I have already discussed
at length the unique and serious organizational handicaps facing employees who live
as well as work on company premises. As shown, Respondent by its categorical no-
access rule impaired the opportunities of these employees to inform themselves of
their self-organizational rights, to intelligently discuss and evaluate union matters,
64 See Lake Superior Lumber Corporation, 70 NLRB 178, enfd. 167 F. 2d 147, 152
(C.A. 6)-(employer required to grant access to bunkhouses in addition to recreation
hall) ; Marshall Field & Company, 98 NLRB 88, 93, modified in other respects 200 F. 2d
375, 380 (C.A. 7)-(access to private street in addition to public restaurants ordered).
66 In any event, Kazansky's testimony (on which Respondent relies) as to the number
of cards he had when he filed the election petition is not as definitive as Respondent
would have it. Kazansky testified that he was "not sure of the amount of cards" he
had ; he only "would estimate" the number to be between 160 and 170. Since Kazansky
testified about events that took place more than .1 year before, without records before
him, his "estimate" is no more than just that.
S. & H. GROSSINGER'S INC. 261
and to exercise an informed and free choice in an election shortly to be held. The
question still with us is what, if any , "prejudice " or detriment could accrue to
Respondent by allowing union representatives reasonable access to the premises in
order to afford the resident employee these opportunities . Respondent pointed to
none at the hearing and cites none in its brief . It has made no showing that the orga-
nizational restrictions imposed by its absolute no-access rule serve so substantial and
legitimate a business end as to overcome the statutory right of its resident employees
to reasonable methods of access to nonemployee organizers.
It appears that Respondent 's total exclusion of union organizers from the premises
rests on little if anything more than bare assertion of alleged proprietary interest.
But, as stated in N.L.R.B. v. United Aircraft Corp., 324 F. 2d 128, 131 (C.A. 2), "We
have long passed the point where the bundle of property rights can be used arbitrarily
or capriciously to restrict a worker's freedom of association or expression ." More-
over, "Inconvenience , or even some dislocation of property rights, may be necessary
in order to safeguard the right to collective bargaining ." N.L.R.B. v. Stowe Spinning
Company, e t al., 336 U.S. 226, 232. This is not to say that the resident employees'
right to communicate with union organizers on company property is not subject to
reasonable limitations . Respondent operates a hotel and offers recreational and
other facilities to the public . It has every right to regulate the access of outside
organizers by setting aside specific areas and limiting their number in a manner
reasonably related to its natural interest in maintaining efficiency and discipline and
safeguarding against disturbance . See Lake Superior Lumber Corporation, 70 NLRB
178, 179, footnote 3; Marshall Field & Company, 98 NLRB 88. But just as the
right to enter does not mean the right of unlimited entry, neither does the right to regu-
late entry mean the right to prohibit it altogether.
Respondent has demonstrated its own capacity to work out a suitable accommoda-
tion in its treatment of nonemployee groups that have been permitted to solicit on its
premises for other purposes-charitable , commercial , and political . Members of the
public are welcome to visit the hotel and grounds at designated times and hours.
Relatives and friends of employees may visit them at home at Grossinger 's. Respond-
ent also permits access to representatives of craft unions ( such as plumbers and
electricians ) whose members work on the premises. Paul Grossinger in effect con-
ceded that the Company 's absolute prohibition on access was directed only to organi-
zation of the as yet unorganized.
Weighing the absence or insubstantiality of legal detriment to Respondent from
abrogation of its rule or policy absolutely barring nonemployees from soliciting and
organizing employees on the premises, against the substantiality of the detriment to
employee self -organization from continuance of that rule, I conclude that the rule
constitutes unlawful interference with employee statutory rights and , therefore, that
it is violative of Section 8 (a) (1) of the Act.
5. Conclusions respecting Respondent 's denial of union access to company premises
for the purpose of replying to company antiunion election speeches
As related supra ( sections A through E), Respondent conducted a vigorous anti-
union campaign in the organization drive. Its officials made numerous speeches to
employees assembled during working hours on company property. As found, in the
course of these speeches company representatives denounced the Union, attacked its
programs , and made coercive statements-including veiled warnings of loss of
benefits, work opportunities , and job security ; direct and implied promises of improve-
ments in working conditions ; and subtly phrased expressions creating impressions of
surveillance of union activities . Respondent contemporaneously committed inde-
pendent violations ; these included coercive interrogations and participation and
encouragement in circulation of an antiunion petition . Prior to each election the
Union wrote Respondent asking for an "equal opportunity" to address the employees
on company premises in order "to neutralize " the Company's "prejudicial remarks."
The Union also asked for access to company property to enable it "to meet with and
discuss with many employees who reside on hotel grounds the features of trade
unionism," to acquaint them with the "advantages of unionism," and to tell them "the
Union's side of the story." Respondent either ignored or refused the Union's requests.
Based on principles enunciated by the Supreme Court in N.L.R.B. v. United Steel-
workers of America, CIO (Nutone Inc.), 357 U.S. 357, and N.L .R.B. v. The Bab-
cock & Wilcox Company, 351 U.S. 105, as applied and followed by the Board in
The May Department Stores Company d/b/a The May Company, 136 NLRB 797,
and Montgomery Ward & Co., Inc., 145 NLRB 846, I find that, in the circumstances
of this case , Respondent 's denial of the Union's request to reply to the Company's
antiunion speeches on the premises-while maintaining a rule or policy barring union
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
access to employees residing on the premises, for the purpose of communicating with
said residents concerning organizational matters-unlawfully interfered with its
employees' organizational rights, in violation of Section 8(a)( I) of the Act.
In the May case, the Board found that a department store violated Section 8(a)(1)
of the Act by delivering antiunion election speeches to massed assemblies of employ-
ees in its store during working hours, while at the same time denying the Union's
request for equal time and opportunity to reply thereto in view of its broad (but
privileged) rule forbidding solicitation in selling areas during both working and
nonworking time (see, supra, footnote 61). Applying the Supreme Court's Nutone
and Babcock & Wilcox decisions and relying on its earlier Bonwit Teller decision
(96 NLRB 608, remanded on other grounds 197 F. 2d 640 (C.A. 2), cert. denied
345 U.S. 905), the Board held that an employer who avails himself of the broad
privileged rule while at the same time utilizes the otherwise proscribed working time
and'place for its own antiunion campaign creates a "glaring `imbalance in opportu-
nities for organizational communication' [Nutone, 357 U.S. at 362]." The Board
reasoned (136 NLRB 797, 801-802) :
By such conduct Respondent seized for itself the most advantageous circum-
stances in which to present to employees its side of the organizational question.
It spoke to them in massed assemblies during working time, thus gaining the not
inconsiderable benefit flowing from the utilization of the employment realtionship
for such purposes, and insuring that its message would reach all of its employees
in the most carefully thought out and coherent form for maximum effectiveness.
At the same time it relegated the Union and its employee supporters to rela-
tively catch-as-catch-can methods of rebuttal, such as home visits, advertised
meetings on the employees' own time, telephone calls, letters, and the various
mass media of communication. While it is true that the Supreme Court in
Babcock & Wilcox held that an employer may normally put a union to the task
of organizing employees through such channels, it indicated that such right was
not absolute, but was limited to those circumstances where the effectiveness of
such channels of communication was not diminished by employer conduct, or
by other circumstances.
[W]hile Respondent was under no obligation to forgo utilizing such time
and place for its antinuion campaign, we find that it was under an obligation to
accede to the Union's request to address the employees under similar circum-
stances. Only by such action could it maintain the balance which the Supreme
Court deemed so important a factor in this area. Respondent's failure to accede
to the Union's request seriously impaired the employees' ability to learn of the
advantages of union organization from others, and to discuss such advantages
among themselves.
In Montgomery Ward, the Board found that the department store's rejection of the
union's request to reply to the company antiunion speeches during working hours
resulted in an even "stronger" and more "glaring" imbalance, since the speeches
were coercive as well as antiunion, and the no-solicitation rule enforced was unlaw-
fully broad in that it prohibited union discussion during nonworking hours in non-
selling as well as selling areas. In finding a Section 8(a)(1) violation, the Board
stated:
The Respondent's utilization of company time and premises to propagandize
against the Union must be viewed against the background of its unlawful cir-
cumscription of its employees' union activity....
Respondent seriously impaired lawful solicitation activities at the natural
site where employees are accessible for organizational efforts. Quite clearly,
here more than in May, Respondent's broad and unlawful no-solicitation rule,
coupled with its own use of company time and property to impress its anti-
union propaganda on employees, "created a glaring imbalance in organizational
communication".... [145 NLRB 846, 848, 849.]
In my view, the rationale of May and Montgomery Ward applies with equal if
not greater force in this case. In May, it was the "no-solicitation rule enforced by
Respondent . . . which seriously impaired the right of employees to discuss union
organization on company premises during nonworking as well as working time . .
[and] created an imbalance in the opportunities for organizational communication."
[136 NLRB at 800.] In the face of the employees' limitation on organizational
activities, the employer's antiunion campaign speeches during working hours and
S. & H. GROSSINGER'S INC. 263
on company premises-"the most effective place for the communication of opinion
concerning unionization"-gave the employer a "practical" and unfair advantage in
the election contest. Bonwit Teller, Inc. v. N.L.R.B., 197 F. 2d 640, 645 (C.A. 2),
cert. denied 345 U.S. 905, quoted in May at 799. In the instant case, for reasons
already explicated (supra, section F, 4), it was Respondent's policy or rule barring
the Union's access to company property which "seriously impaired the right of
employees" to organize. As noted, because the majority of Respondent's employees
(54.6 to 65 percent) maintain their homes on company property and, additionally,
because many of them work split shifts and late hours and all avail themselves of
dining, entertainment, and other facilities, the resident employees leave the premises
only rarely and irregularly, and are virtually isolated from outside organizers. Under
these circumstances, alternative off-premises channels of communication, even if
otherwise effective and available, were of little value to the Union for reaching
these employees. Hence, as already found, the bulk of Respondent's employees
were deprived of their right to be informed about their organizational rights by
professional and trained organizers and, as a result, intelligently to discuss and
evaluate union matters among themselves (even on the premises), and to exercise
an informed and free choice in the coming election. Atop of these serious handi-
caps, Respondent, in the role of antiunion advocate, took advantage of the situation
by using its facilities and the employees' workplace and homesite to saturate them
with its own one-sided, antiunion propaganda. In its numerous speeches delivered
to massed assemblies, during working hours, company representatives not only
denounced the Union, its leaders, and its aims, but (as found) sought to induce them
to forego self-organization by coercive appeals. And apart from the Union's inability
to reach the resident employees off the premises in order to "neutralize" these
"prejudicial remarks." the final company speeches were delivered by it on its prem-
ises within a matter of a day or two before the election,66 foreclosing any real
opportunity for the Union to counteract it in any feasible way. Under the circum-
stances, it is clear that Respondent's refusal to afford the Union an opportunity to
utilize the same forum-the company premises-to reply to company accusations
gave Respondent a vast, unfair advantage, creating the "imbalance in opportunities
for organizational communication" condemned by the Supreme Court in Na tone.
In my view, the "imbalance" here is substantially more glaring than it was in May,
and at least as strong as it was in Montgomery Ward. As in the latter case, the rule
here invoked to bar union access was unlawful and the antiunion speeches were
coercive. In addition, here-more so than in either May or Montgomery Ward-
the Union, as noted, had no reasonably effective alternative channels of communica-
tion with at least the majority of Respondent's employees, whom it could not visit
even in their own homes.67 Respondent's no-access policy thus perpetuates a gross
inequality in opportunities for organizational communication.
In making the foregoing analysis, I am not unmindful that the scope of the Bonwit
Teller doctrine has been somewhat narrowed as applied in nondepartment store situ-
ations in Livingston Shirt Corporation, et al., 107 NLRB 400. In Livingston-which
involved a typical manufacturing plant-a majority of the Board held that an employer
could lawfully deny a union's request for equal opportunity to reply to an antiunion
speech on company time and property, if the employer did not have either (1) "an
unlawful broad no-solicitation rule (prohibiting union access to company premises
on other than working time)"; or (2) "a privileged no-solicitation rule (broad, but
not unlawful because of the character of the business)"-as in the case of a depart-
ment store. 107 NLRB at 408-409. It appears from Livingston that the Board
majority was particularly concerned about the then trend "in giving unnatural promi-
nence to the employer's premises . . . to make them the exclusive forum for airing
the divergent points of view." 107 NLRB at 407.68 However it is apparent that
66 The last speech before the May 2 election was made on April 30. Respondent
delivered speeches on each of the 7 days, except December 11,
election.
before the December 14
67 As indicated (8apra, section F, 3, b), Respondent, by its no-access policy barred dis-
tribution of union literature on the premises (although some was passed out surrepti-
tiously), as well as solicitation and union discussion.'
66 The majorty cited cases like Metropolitan Auto Parts, Incorporated, 102 NLRB
1634, where the Board had applied Bonwit. Teller to a situation where the employer-
a manufacturer-delivered a noncoercive speech, did not invoke a no-solicitation (much
less unlawful) rule, and there was no evidence of unavailability of adequate alternative
off-premises channels of communication.
264. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
even Livingston did not bar application of Bonwit Teller to a nondepartment store
situation where there was an unlawful rule barring "union access" to company
property.69
In the May case, the Board stated, "It is not necessary to, and we do not, pass
upon the Livingston Shirt case insofar as it affects nondepartment store situations."
136 NLRB at 800, footnote 11. It is evident from the May decision, however, that
the Board did not intend applicability of the Bonwit Teller or May doctrine to turn
on whether the enterprise involved was a department store, a plant, or something
"between," such as the hotel in this case. Indeed, the "imbalance" in organizational
opportunities test propounded by the Supreme Court in Nutone-involving a plant-
is the very test applied by the Board in May for a department store.70 Surely,
plant or hotel, no less than department store, premises may, in given circumstances,
present the only practicable opportunities for communication with union organizers.
As the Board recently observed, "Our function under the Act, the Supreme Court
has said [in Nutone] requires us to avoid `mechanical answers' in seeking a `solution
of this non-mechanical, complex problem in labor-management relations.' Thus, the
evaluation of the various factors bearing on the validity of the [solicitation] rule
must relate to the `actualities of industrial relations.' " The Wni. H. Block Company,
150 NLRB 341, 342. Each case-whether involving a department store or non-
department store-must turn on its own facts. In Nutone-a plant case-the Board
and the Supreme Court found no imbalance in opportunities for organizational com-
munication; the literature distributed by the employer on the premises was non-
coercive, there was no showing that alternative modes of communication were
unavailable, and the union failed to request an opportunity to counteract the employ-
er's distribution by distributing its own literature on the premises.11 In N.L.R.B. v.
American Tube Bending Co., Inc., 205 F. 2d 45 (C.A. 2), enfg. 102 NLRB 735-
also involving a plant-the Board and Court, finding that the case "falls directly
within ... Bonwit Teller" (205 F. 2d at 47), held that the employer's failure to give
the union equal opportunity to answer the employer's antiunion speech on the prem-
ises was unlawful. "It was this [unlawful no-solicitation] rule, coupled with the
address made, that was the wrong..." 205 F. 2d at 46. In N.L.R.B. v. Montgomery
Ward & Co., Inc., 339 F. 2d 889 (C.A. 6)-a department store case-the court,
affirming the Board's finding (supra, 145 NLRB 846) that the employer's antiunion
speeches created "a glaring imbalance in organizational communication," gave par-
ticular weight to the circumstances that the speeches were coercive and the no-
solicitation rule invoked was unlawful.72 Similarly here, the absolute no-access rule
and the coercive speeches are the dominant factors creating the imbalance in oppor-
tunities for organizational communication.
86 In Livingston the majority refused to apply Bonwit Teller because it found that the
employer's rule prohibiting solicitation only during working hours was lawful, his speeches
were noncoercive and privileged, and "nowhere in the record does it appear that [the
union] was denied access to Respondent Livingston's premises after working hours." 107
NLRB at 409.
70 Nutone was decided by the Supreme Court in June 1958. The Board decided Living-
ston Shirt in December 1953 and May in April 1962.
71 Apart from these considerations, company distribution of literature on premises
does not normally put a union at the same disadvantage as speeches to massed groups
of employees on company premises during paid working time. See, e.g., Metropolitan
Auto Parts, Incorporated, 102 NLRB 1634, 1636; Stoddard-Quirk Manufacturing Co., 138
NLRB 615, 619-620. In any event, the court cautioned in Nutone that it is not to be
understood as holding that "enforcement of a valid no-solicitation rule by an employer
who is at the same time engaging in anti-union solicitation may not constitute an unfair
labor practice. All we hold is that there must be some basis, in the actualities of
industrial relations, for such a finding." 357 U.S. at 364. The Supreme Court's Babcock
& Wilcox decision likewise dealt with the right of nonemployees to distribute literature
on company property (parking lots).
72 The same court had declined to enforce the May case, supra, about 2 years earlier
(316 F. 2d 797), emphasizing that in May both speeches and no-solicitation rule were
lawful and that the union had adequate alternative channels of communication for reach-
ing employees. Compare the recent case in Montgomery Ward'& Co., Incorporated, 150
NLRB 1374, where the Board adopted Trial Examiner Von Rohr's decision that the em-
ployer did not (unlawfully deny the union equal time to reply to the antiunion speeches.
The employer there waived his right to bar employee solicitation in selling areas, the
speeches were noncoercive, and there appeared to be no imbalance in organizational com-
munication necessitating replies to the privileged speeches.
S. & H. GROSSINGER'S INC. 265
In the light of all the circumstances , I conclude that Respondent , by denying the
Union's request for an opportunity to reply to its coercive , antiunion speeches on
company time and premises-while at the same time barring union access to employ-
ees maintaining their homes on the premises, for the purpose of communicating with
said employees concerning organizational matters-interfered with, restrained, and
coerced its employees within the meaning of Section 8 (a)( 1 ) of the Act.
IH. CONDUCT AFFECTING THE RESULTS OF THE MAY 2, 1964, ELECTION
As recited in the statement of the case, the Regional Director, having found that
certain objections filed by the Union to the May 2, 1964, election raised substantially
the same issues in the complaint proceeding, consolidated the representation and
complaint proceedings for purposes of hearing, ruling, and decision. As noted, I
have found that Respondent interfered with, restrained, and coerced its employees'
self-organizational rights in violation of Section 8(a)(1) of the Act, prior to the
May 2 election, because, among other things, it refused the Union access to its prem-
ises for the purpose of communicating with employees residing thereon concerning
organizational matters, and it denied the Union opportunity to reply to antiunion
speeches made by company representatives during working hours.
I further find that Respondent, by the aforesaid conduct, prevented its employees
from freely expressing their choice in the May 2, 1964, election. Accordingly, I rec-
ommend that said election be set aside and a new election be conducted at a time
and date to be determined by the Regional Director. i3
IV. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices in viola-
tion of Section 8(a) (1), I shall recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
I shall recomend Respondent to cease and desist from continuing or giving effect
to its policy or rule barring nonemployee organizers of the Union, or any other
labor organization, from reasonable access to company premises for the purpose of
soliciting employees residing on the premises for union membership or for assisting
said employees in regard to their self-organizational rights on thier free time.
I shall also recommend Respondent to cease and desist from using its facilities to
make antiunion speeches during working hours prior to 'the new election hereafter
to be conducted by the Regional Director, without upon reasonable request, accord-
ing the Union herein a similar opportunity to address the employees. Since this
requireemnt is basically predicated upon Respondent's unlawful policy or rule bar-
ring communication between the Union and the resident employees on company
premises (cf. Montgomery Ward & Co., Inc., 145 NLRB 846, 849-850), and since
the Recommended Order herein , if adopted by the Board , will enjoin enforcement
of such company policy in the future , there would then, presumptively at any rate,
appear to be "no justification for the `equal time ' feature of this order to be applica-
ble beyond the date of the forthcoming employee representation election." N.L.R.B.
v. Montgomery Ward & Co., 339 F. 2d 889, 895.
CONCLUSIONS OF LAW
1. Respondent , in violation of Section 8(a) (1) of the Act, interfered with,
restrained , and coerced its employees through interrogation , veiled threats, implied
and direct promises of benefits , creating the impression or surveillance , and encour-
aging or soliciting employees to withdraw from the Union.
2. Respondent also violated Section 8(a)(1) by denying nonemployee organizers
access to its premises for purposes of soliciting employees residing on company
premises on behalf of the Union , and for otherwise communicating with said employ-
ees concerning organizational matters.
3. Respondent further violated Section 8 (a)(1) by denying the Union 's request
for an equal opportunity to reply to antiunion speeches made by company represent-
atives to employees during working hours on company premises.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
73 In view of the above finding, It is unnecessary to decide whether Respondent ' s other
violations prior to May 2, 1964 , furnish additional grounds for ( or in themselves justify)
setting aside the May 2 election.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in this proceeding, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, I recommend that the Respondent, S. & H. Grossinger's,
Inc., Liberty, New York, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its employees by coercively inter-
rogating employees concerning their union sympathies or activities; by threatening,
directly or indirectly, reprisals, including withdrawal of benefits, in the event of
unionization of the hotel; by promising, directly or indirectly, benefits in the event
of nonunionization; by conveying to employees the impression of surveillance of
union activities; and by encouraging or soliciting employees to withdraw their union
affiliations.
(b) Continuing or giving effect to its policy or rule barring nonemployee organizers
access to employees residing on company premises for the purpose of soliciting them
during their free time on behalf of a union, or for consulting, advising, meeting, or
assisting said employees in regard to their rights to self-organization, except that
access to the premises for the purposes indicated may be reasonably regulated by
Respondent.
(c) Making speeches to employees, directed against Hotel and Restaurant Employ-
ees and Bartenders International Union, Local 343, AFL-CIO, during working hours
on company premises, prior to the new election hereafter to be conducted by the
Regional Director, without according, upon reasonable request, said labor organiza-
tion similar opportunity to address the employees.
(d) In any other manner interfering with, restraining, or coercing employees in
the exercise of their rights to self-organization, to form, join, or assist any labor
organization, to bargain collectively through representatives of their own choosing,
to engage in concerted activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any and all such activities, except to the
extent that such rights may be affected by an agreement requiring membership in a
labor organization as authorized in Section 8(a)(3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Post at its premises in Liberty, New York, copies of the attached notice marked
"Appendix." 74 Copies of said notice, to be furnished by the Regional Director for
Region 3, shall, after being duly signed by Respondent's authorized representative,
be posted by Respondent immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(b) Notify said Regional Director, in writing, within 20 days from receipt of this
Decision, what steps have been taken to comply therewith.75
I further recommend that the complaint in Case No. 3-CA-2242 be and the same
is hereby dismissed as to all violations alleged but not herein found; and that the
election held on May 2, 1964, in Case No. 3-RC-3243 be set aside and that said
case be remanded to the Regional Director for Region 3 to conduct a new election
at such time as he deems that circumstances permit free choice of bargaining
representative.
74 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "a Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
751n the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
AMERICAN COMPRESS WAREHOUSE 267
APPENDIX
NOTICE
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT interfere with, restrain, or coerce you in the exercise of your
right to self-organization by coercively interrogating you concerning union
matters, by directly or indirectly threatening you with reprisals or withdrawal
of benefits in the event of unionization, by promising, directly or indirectly,
benefits in the event you abstain from unionization, by creating the impression
of surveillance of union activities, and by encouraging or soliciting you to with-
draw union membership.
WE WILL, subject to lawful and reasonable regulations, allow nonemployee
organizers access to those of you who reside on our premises, for the purpose of
soliciting you on behalf of the Union during your free time, or of consulting,
advising, meeting, or assisting you on your free time, in regard to your rights to
self-organization.
WE WILL, upon reasonable request, accord Hotel and Restaurant Employees
and Bartenders International Union, Local 343, AFL-CIO, equal opportunity
to reply to speeches we may make during working hours on company premises,
directed against that Union, before the new election to be conducted by the
National Labor Relations Board.
WE WILL NOT in any other manner interfere with your right to make a free
and untrammeled choice in any election conducted by the National Labor Rela-
tions Board.
All of you are free to become or remain or to refrain from becoming or remain-
ing, members of Hotel and Restaurant Employees and Bartenders International
Union, Local 343, AFL-CIO, or any other labor organization.
S. & H. GROSSINGER'S INC.,
Employer.
Dated-------------- ---- By-------------------------------------------
(Representative) (Title)
This notice 'must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Fourth
Floor, The 120 Building, 120 Delaware Avenue, Butaio, New York, Telephone No.
842-2100.
American Compress Warehouse, Division of Frost-Whited Com-
pany, Inc. and United Packinghouse, Food and Allied Workers,
AFL-CIO: Cases Nos. 15-CA-1998 and 15-CA-2000. Decemn-
ber 21, 1965
SUPPLEMENTAL DECISION AND ORDER
On June 28, 1962, the National Labor Relations Board issued its
Decision and Order in the above-entitled proceeding,' finding, inter
alia, that Respondent discriminatorily discharged Simon Littleton,
1137 NLRB 980.
156 NLRB No. 8.