Tamiment, Inc.

National Labor Relations Board - Board DecisionsFeb 4, 1970

180 N.L.R.B. 1074 (N.L.R.B. 1970)

1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tamiment, Inc. and Hotel and Restaurant Employees Union Local 558. Case 4-CA-4940 February 4, 1970 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On November 13, 1969, Trial Examiner Bernard J. Seff issued his Decision in the above entitled proceeding , finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Respondent filed timely exceptions to the Trial Examiner's Decision and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions , and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Tamiment, Inc., Tamiment, Pennsylvania, its officers, agents, successors , and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BERNARD J. SEFF, Trial Examiner: This case was tried before me at Philadelphia, Pennsylvania, on October 6, 1969,' on a complaint issued on August 21 based on a charge which was filed on June 16. The complaint alleges, in substance that in March, April, May and June, Hotel and Restaurant Employees Union Local 558 requested both orally and in writing (in a letter dated May 15) that Tamiment grant representatives of the Union access to Respondent's premises in order to conduct its organizational campaign among Respondent ' s employees, and that Respondent denied all such requests. The complaint further alleges that a substantial number of Respondent 's employees reside upon its premises , perform their services during long and/or irregular hours, subject to Respondent's control, with the premises secured and guarded so as to be inaccessible except with Respondent's permission . The sole issue to be decided is whether, under the facts, by its refusal to grant the Union access to its premises for the purpose of communicating with employees, Respondent interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act. For reasons hereafter stated, I find and conclude that the issue must be answered in the affirmative. At the trial the parties were represented by their respective counsel who were afforded full opportunity to examine and cross-examine witnesses, to _ introduce relevant testimony, to argue orally on the record, and to submit briefs. Oral argument was waived. Briefs were submitted on behalf of the General Counsel and Respondent and they have been duly considered. Upon the entire record in the case , including my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT' A Description of Respondent's Premises Respondent operates an adult summer camp for 5 months of the year located in Tamiment, Pennsylvania. Tamiment owns 2,200 acres of which approximately 471 to 475 are developed and utilized for the benefit of guests. Tamiment has a maximum capacity of 950 guests who are housed in a total of 450 guest rooms. During the past season Tamiment housed 1,015 guests by arranging to use the additional facilities of Unity House, a resort owned by the International Ladies' Garment Workers Union, which is located on property adjoining that of Tamiment. Tamiment is in a rural area approximately 5 miles from the town of Bushkill . The closest larger town is East Stroudsburg which is 13 miles from Tamiment, and is reached by driving from Bushkill on a two lane rural highway. A private road approximately four city blocks long leads from the highway to the gate of the camp. There is a guardhouse commanding the entrance to Respondent's property. There is also a parking lot near the entrance which can accommodate about 200 cars. On or about May 28, Mr. Harvey Morse called at the gate and requested permission to enter upon the property. The guard telephoned Mr. Gerard, who is the managing director, and Gerard drove over to the gate in a golf cart where he found a car parked to the left of the gate and a gentleman representing the Union standing near the gate who was later identified as Mr. Harvey Morse. Morse requested permission to enter upon the property which request was denied by Gerard. The record indicates that union organizer Schuster made about eight visits to Respondent's property between the time of his first visit which occurred in March until May 28. On the occasion of Schuster's eighth visit he first registered as a guest during a convention of Cap and Millinery Workers' Union and while on the premises talked to a number of employees and gave out literature in different areas on Tamiment property. When the company representatives Gerard and Menell caught up with Schuster they complained to him that he was All dates are in 1969, unless otherwise indicated 'No issue of commerce or labor organization is presented. The complaint alleges and the answer admits facts which establish these jurisdictional averments I find those facts to be as pleaded 180 NLRB No. 171 TAMIMENT, INC. disrupting the employees during their regular working hours and that if that was what he continued to do he would have to leave. On the other hand if he was merely on the property as a guest of the hotel and he behaved like one that was all right with Respondent. Sometime between 5 and 5:30 p.m. on this day Schuster checked out and left Respondent's property. The record also indicates that during the course of Schuster's visits to Tamiment he distributed approximately 150 cards to a number of employees and asked them to have them signed and returned to him. Some of the meetings held with employees took place at a bar located in Bushkill called the Log Cabin and some of the cards were distributed to employees while Schuster was standing on the parking lot. Starting from May 13 Schuster spoke to about 25 employees and of these he obtained about 12 signed authorization cards. The Company stressed that Tamiment is a seasonal operation. It has never operated for more than 6 months each year and the usual span of operation covers a period of 5 months. During the balance of the year there are no guests on the premises and no more than a skelton crew comprising 3 employees. Tamiment's employee complement ranges from about 300 in mid-May up to about 430 to 437 in July and then down to just below 300 in September. During the past season Tamiment was open from May 3 to October 13. Approximately 80 to 85 percent of the staff resides on the premises. Staff housing is not centrally located, but is scattered throughout Tamiment's grounds. The remainder of the staff, who reside off the premises, live in the immediate area of Bushkill and East Stroudsburg, Pennsylvania. Tamiment provides lodging for all of those employees who reside on the premises and provides food, three meals a day, for most of those employees who do not reside on Company property. Employees who eat on the premises normally take their meals in the main dining room or the staff cafeteria. Employees who reside off the grounds of Tamiment take only one meal a day at Respondent's facility Tamiment employs various categories of workers at a variety of hours and days to provide service for its guests 24 hours a day, 7 days a week. Respondent maintains a general no-solicitation policy which results in the fact that only staff, guests and those people who sell to and service Tamiment directly are permitted to enter the premises. Recruiting help for each new season is accomplished by visiting resort areas in Florida in February, placing newspaper ads in Philadelphia, Newark, New Jersey and New York City newspapers throughout much of March and April, writing colleges , contacting unemployment services in the States of New York, New Jersey and Pennsylvania and contacting other resorts. Only 25 to 30 percent of Tamiment's former employees return on successive seasons . For the most part the returning employees are engaged in housekeeping, dining room and food preparation and also in the commissary departments. Respondent experiences a serious problem, which is common to a seasonal resort industry, in that there is an abnormally high turnover among the employees. This fact is explained on the basis that many of Respondent's staff are made up of summer vacation employees. These summer vacation employees are people who are only available for part of Respondent's season and whose starting and terminating dates are at their own convenience rather than in response to Tamiment's requirements . Many summer vacation employees are college students earning money for school and, according to data offered in evidence during the course of the 1075 hearing, approximately 30 percent of Tamiment's employees this past season were summer vacation employees. The percentage of summer vacation employees in the various departments were explained as follows: Front office - 70 percent; Reservations - 30 percent; Service 75-80 percent; Dining room - 30 percent; Coffee shop - 70 percent; Beverage -- 40 percent; Camp 100 percent; Entertainment and Physical Recreation - 50 percent and Waterfront - 85 percent. Respondent explains that because of the high rate of turnover among summer vacation employees and the further fact that they are available only for short periods of Respondent's 5-month season the Company considers summer vacation employees as temporary help. The level of employment in each department is lowest in May and reaches its highest point in either July or August. Of the entire staff only 38.7 percent, or less that two-fifths, work more than 8 weeks out of the 5-month season. It was also testified that 43.1 percent of the total staff worked less than 4 weeks out of the 5-month season. The Respondent takes the position that this case is one of first impression because it involves a union request for access to the premises to a seasonal resort which operates for only 5 months of each year. The Company seeks to distinguish the two principle cases respecting access in the resort industry: S & H Grossinger's Inc., 156 NLRB 233, enfd as modified 372 F.2d 26 (C.A. 2), and Kutsher's Hotel and Country Club. Inc.. 175 NLRB No. 76., on the basis that the above cases involve year around 12-month operations. The other distinguishing factor which Respondent advances in his brief is that in addition to the year-around operation, in the Grossinger case there were other unfair labor practices consisting of an antiunion campaign and antiunion speeches. Respondent emphasizes that the Union did not charge Tamiment with any other unfair labor practices and indeed none were committed. Furthermore, Respondent argues that the company in the Grossinger and Kutsher cases did not point to any prejudice or detriment which would accure to the management if the union's requests were granted. The point is then made that the physical layout at Tamiment is unique and unusual conduct on the part of the Union on the premises would be a detriment to the proper functioning of Tamiment and it would interfere with the freedom of movement of its guest and staff. Respondent's brief summarizes the Company's position as being based on the following factors: (a) the effect of Tamiment's 5-month seasonal operation, (b) the availability to the Union of off premises channels of communication, (c) the failure of the Union to make any reasonable attempt to communicate with Tamiment's employees and (d) the detriment to Tamiment because of the need to supervise the movements of the Union's representatives on Tamiment's grounds. In the Grossinger case cited supra, from 54.6 to 65 percent of the company's employees, (i.e., 309 to 511 employees) live on the premises in housing supplied by respondent and receive their meals at the hotel. Thus the 1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD so-called unique physical setting of the camp location applies equally to both Respondent and Grossinger The Union made numerous unsuccessful attempts to communicate with Respondent ' s employees Prior to the resort ' s opening and before any employees were on the premises, on or about March 31 or April 1, 1969, Harvey Morse, an international trustee for the Union and Serge Schuster , union organizer , went to Respondent ' s resort and were approached by Respondent ' s managing director, Victor Gerard. Morse called to Gerard' s attention the fact that there had been a fire at Unity House, an adjoining resort owned by the International Ladies' Garment Workers Union, and that Respondent might pick up some business that Unity House could not accommodate if Respondent operated a "Union House". Thereafter a Union representative again appeared at the resort on May 12 the day before it opened and "looked around outside of the gate". This Union representative , Schuster, saw no employees on this occasion but was told by guards in the guardhouse that he was not allowed past the entrance gate He came back on May 13 and placed some literature on cars in the employees ' parking lot. On that day Schuster spoke to four employees between the parking lot and the guard house asking them to join the Union. All four signed Union authorization cards At their request Schuster gave each of these employees five or ten additional cards asked them to sign up fellow workers and made arrangements to meet them within a week. On May 15 Morse wrote a letter to Gerard informing him that the Union was engaged in an organizing campaign among Respondent ' s employees . The letter, requesting permission for access to Respondent 's property, said that the Union would contact the employees on their off time. The letter further stated that the Union had no intention of distracting Respondent ' s employees during working periods Respondent never replied to this letter. Schuster returned to the resort the following week to meet the employees he had seen on May 13. He waited near the entrance for 3 or 4 hours without seeing these employees but spoke to three other employees who were entering the gate and gave them authorization cards. The employees told Schuster they would sign the cards but the guard interfered by stating that he could not give them permission to do that at the place where the cards were given to them . Again on the following day Schuster waited for awhile , failed to see any employees and decided to go to the Log Cabin which is a restaurant located a few miles from Tamiment. At the Log Cabin he saw three other employees and convinced them to sign cards. These employees requested additional cards and made arrangements to meet Schuster in a few days to give him any cards they were able to get employees to sign. On May 22 Schuster went back to the guardhouse and the guards told him he was not to be permitted on Respondent ' s private road. Schuster left and never again returned to Respondent ' s premises for the purpose of communicating with Respondent's employees. Subsequently Morse and Schuster went to the resort to see Gerard, requested access to the premises , and were told that Tamiment would not permit the Union organizers on their property . Morse and Schuster then left. From early June until the resort closed at the end of September Schuster made visits to the area about 2 days a week in an attempt to communicate with the Respondent's employees On these occasions he went to the Log Cabin, the tavern in Bushkill and to Unity House during periods when it was being utilized by Respondent to house guests. Certain indicia common to the Grossinger and Kutsher cases establish that in these cases the following facts exist: (a) 55.6 to 65 percent of Grossinger's employees lived on the premises ; (b) The employees spend almost all their time on the premises ; (c) The unions were unable to get in touch with the majority of the resident employees by reasonable attempts through usual channels; and (d) The employers failed to show that they would suffer substantial detriment in the operation of their business if they were required to abandon their "no access " rules. In the case at bar between 86 percent and 92 percent of the employees reside on Respondent ' s premises. Respondent ' s employees who live on the premises are provided with all their meals and those living off premises receive meals while they are on duty There is no restriction against employees socializing with guests and utilizing all of the many recreational and entertainment facilities except at times when such activity would interfere with their use by the guests The resort is a complete self-contained community containing its own post office, infirmary and laundry facilities. Under these circumstances there is no need for an employee ever to leave the premises while he is employed by Respondent. There is very little occasion for any employee to leave the premises because the nearest outside entertainment available to them, the Log Cabin Bar, is about a mile from the Respondent 's road while the nearest movie theater is 12 to 14 miles away. In this connection it is to be noted that only approximately half of the employees have automobiles . To these facts there is added the further fact that employees not only rarely leave the resort but because of staggered work shift, irregularity of hours and the variation in work schedules they do not have much occasion or much opportunity to leave. Under all these circumstances it is clear that the Union is unable to reach the largest number of the employees off the premises at any one time. Further, adequate alternative means of communicating with the employees are also lacking There are no telephones in the employees rooms and the record contains no information indicating that the employees could be reached by television or radio appeals or newspaper advertising . The Union did in fact make reasonable efforts through ordinary normal channels to reach the employee they were trying to organize but under the circumstances that prevailed at Tamiment such efforts were doomed to failure The Respondent in his brief urges that the granting of permission to Union representatives to come on its premises would work a serious detriment to Respondent No facts were adduced to support this contention and in any case there is no reason to believe that the presence of Union representatives on Tamiment property would cause any greater problem for it than exists for the employers in Grossinger 's and Kutsher's Respondent attempted to distinguish its operations from those of Grossinger 's and Kutsher 's because it is open only 5 months each year rather than 12 months Further that that employee turnover is higher than that of all year around resorts. The fact that the Respondent is engaged in a seasonal business, as distinguished from the situations that prevail in Grossinger 's and Kutsher's, is a difference without a distinction The Board has conducted representation elections among employees of seasonal employers for a great many years and the fact that certain individuals might not return in succeeding years does not in any way detract from the fact that all employees are entitled to Union representation if they so desire whether they are regular or seasonal employees. What is TAMIMENT, INC. significant is that at times when Tamiment is in operation it requires the same categories of employees each year. And no effort was made on this record to attempt to establish that these categories of employees would not constitute an appropriate bargaining unit. Analysis and Conclusions In N.L.R B. v. Babcock and Wilcox Co. 351 U.S 105, the Supreme Court held that in the preservation of his property rights, an employer may ordinarily bar nonemployee distribution and solicitation on his property. At the same time the court pointed out that organizational rights are likewise protected by law, and that when the circumstances are such that inaccessibility of employees makes ineffective the reasonable attempts of nonemployee organizers to communicate with employees through the usual channels the right of an employer to exclude them from his property must yield to the extent necessary to permit communication of information on the right to organize. The problem in each case, as the Supreme Court pointed out, is the accommodation of the two rights "with as little destruction of one as in consistent with the maintenance of the other" (id at 112), and added that "if the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable efforts to communicate with them, the employer must allow the Union to approach his employees on his property." (Id. at 113.) The principles enunciated in Babcock and Wilcox, as they apply to the resort hotel industry were considered in S & H Grossinger's, Inc., where the applicable authorities are cited and discussed (156 NLRB at 254-264), which decision was to the extent here applicable, adopted in loto by the Board (156 NLRB 233,), and enforced by the Court of Appeals for the Second Circuit (372 F 2d 26, 29-30). No good purpose would be served by again reviewing and discussing those authorities. It is sufficient to say in that case the Board, with court approval, laid down the rule that absent legitimate business considerations, an employer who houses his employees on his premises, may not deny Union access to such premises for the purpose of discussing unionism with its employees, unless other adequate channels of communication with the employees are available to the Union The issue, therefore boils down to the narrow question as to whether on the facts developed in this record there exists adequate opportunity for the Union to communicate with the employees in some manner other than requiring Respondent to grant access to the Union to come on its property. For the reasons detailed below I find and conclude that under the facts in this case the limited opportunity which the Union had to contact employees did not afford the Union a reasonable opportunity to communicate with employees within the rule of Babcock and Wilcox, supra. The basic premise inherent in the Supreme Court's holding in Babcock and Wilcox, supra, that the employer's right to keep nonemployee organizers off his property must yield to the right of his employees to engage in self-organization where the location of the plant and the living quarters of the employees place them "beyond the reach of reasonable Union efforts to communicate with them," is that the employees must have a reasonable opportunity to discuss the Union with the latter's representatives in a relaxed atmosphere so that they may reach a reasonable decision with respect to representation. Such rights are fully protected in the 1077 ordinary case of a typical industrial plant in an urban community, where the employees work regular shifts and reside off company premises so that the union representative may visit the employees at their homes to discuss matters at leisure. In the instant case employees live, work and spend virtually all their time on Respondent's premises Absent access to Respondent's premises, there is no place where the Union can communicate with Respondent's employees except on a catch-as-catch-can basis or when a few of them repair to the Log Cabin a mile away from the Company's premises Thus, within the language of the Supreme Court's holding in Babcock and Wilcox, supra, "if the location of a plant and the living quarters of the employees placed the employees beyond the reach of reasonable Union efforts to communicate with them, the employer must allow the Union to approach its employees on its property." (351 U.S. at 113 ) Respondent did not adduce evidence to show that a substantial detriment would accrue to it if it were required to abandon its "no access" rule or policy. While it is true that in the operation of its hotel facilities Respondent has every right to regulate the access of outside organizers by restricting them to specific areas and limiting their number so as to maintain efficiency and discipline in their business operations and to preclude the possibility of disturbance or interference with its guests the Board said in S & H Grossinger's, supra at 261, "Just as the right to enter does not mean the right of unlimited entry, neither does the right to regulate entry mean the right to prohibit it altogether " For the foregoing reasons, I find and conclude that Respondent's refusal to grant the Union's requests for access to its property interfered with, restrained, and coerced the employees in the exercise of their rights protected by Section 7 of the Act, and therefore violated Section 8(a)(1) of the said Act. Upon the foregoing findings of fact and the entire record in the case, I make the following. CONCLUSIONS OF LAW 1. Respondent is an Employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3 By refusing to permit representatives of the Union to come upon its premises to discuss the Union with employees under the circumstances above set forth, Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them by Section 7 of the Act, and thereby engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(l) of the Act. 4. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent unlawfully denied representatives of the Union permission to come upon its premises to discuss the Union with Respondent's employees, it will be recommended that Respondent be required to grant such permission for the purposes stated, except that such access may be reasonably regulated by Respondent as herein indicated. 1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the National Labor Relations Act, as amended , it is recommended that the .National Labor Relations Board enter an order against Tamiment, Inc., its officers, agents, successors, and assigns, requiring it to 1. Cease and desist from: (a) Continuing or giving effect to any policy or rule denying nonemployee organizers access to its employees residing on its premises for the purpose of soliciting them during their free time on behalf of the Union, or from consulting, advising, meeting , or assisting said employees in regard to their right to self- organization , except that access to its premises for said purposes may be reasonably regulated. (b) In any like or, related manner interfering with, restraining , or coercing employees in the exercise of their rights to self-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 by Section 8(a)(3) of the National Labor Relations Act as amended. 2. Take the following affirmative action found necessary to effectuate the policies of the aforesaid Act- (a) Post at its premises at Tamiment, Pennsylvania, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 4, after being duly signed by its authorized representative, shall be posted by it 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 it 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 the receipt of this Decision, what steps it has taken to comply herewith.' 'In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , recommendations , and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. In the event that the Board ' s Order is enforced by a judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board " shall be changed to read "Posted pursuant to a judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " ,in the event that this Recommended Order is 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 it has taken to comply herewith." APPENDIX NOTICE TO EMPLOYEES Posted by Order of the National Labor Relations Board an agency of the United States Government Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL, subject to reasonable rules and regulations, allow Union organizers not employed by us access to our premises for the purpose of soliciting our employees who reside on our premises, during their free time, on behalf of a union, or consulting, advising, meeting, or assisting our employees during their free time, in regard to their rights to selforganization, to form, join, or assist a 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, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization, as authorized by Section 8(a)(3) of the National Labor Relations Act, as amended. All rules and regulations to the contrary, heretofore issued or promulgated by us, have been revoked. All our employees are free to become or remain or to refrain from becoming or remaining members of Hotel and Restaurant Employees Local 558, or any other labor organization. Dated By TAMIMENT, INC. (Employer) (Representative ) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 1700 Bankers Securities Building , Walnut and Juniper Streets, Philadelphia, Pennsylvania 19107, Telephone 215-597-7601.