Biggs and Rosenn, Circuit Judges, and Kraft, District Judge. Biggs, C.j., dissenting.
The National Labor Relations Board has applied to this court pursuant to Section 10(e) of the National Labor Relations Act (29 U.S.C. § 16o(e)) for enforcement of its order issued against respondent Tamiment, Inc., for violating Section 8(a)(1) of the National Labor Relations Act (29 U.S.C. § 158(a)(1))*fn1 by refusing to allow access to its premises for union representatives attempting to organize its workers. The opinion of the Board is reported at 180 NLRB No. 171.
The sole issue raised is whether the union has made an adequate showing that there are no reasonable alternative means for generating face to face contact with workers without having access to the employer's property. In view of the nature of the issue, the operations of Tamiment's resort should be described.
Tamiment, Inc., is an adult summer camp operated from approximately the beginning of May to the end of September each year in the Pocono Mountains of Eastern Pennsylvania. It is about four and a half miles from Bushkill, Pennsylvania, and thirteen miles from the larger town of East Stroudsburg, Pennsylvania.
The resort is a largely self-contained entity. Its 2200 acres, 475 of which are developed, are totally enclosed by a barbed wire fence. The main entrance to the hotel is a private road, approximately "four city blocks long," leading from the highway to the entry gate. A guardhouse stands at the gate and controls all entry to the property. There is an employee parking lot just outside the entrance gate with a capacity for 200 cars. Although no general solicitation is permitted on the property, members of the public are permitted to enter to look around on one hour passes. Once inside the gate a guest can move freely around the property.
The resort has almost all the living and recreational facilities that its guests and the 85% of the staff who live on the premises need. Besides a dining room, there are lakes, swimming pools, golf, nightclubs and other activities. There is also a United States Post Office on the premises that will send and receive mail for guests and staff.
The staff live in cottages spread throughout the grounds. They are given all their meals free which they take in their commissary, or in the main dining room before the guests eat. They have available a laundromat, and they can use all the recreational facilities of the hotel except in peak vacation periods and on weekends. There are no private telephones in the staff cottages, although there are public telephones at various locations. Those members of the staff who wish can bring food in to cook on hotplates in their rooms. Staff who live off the premises are given the meals served during their work hours without charge.
On their free time, employees frequent the Log Cabin, a bar and grill about one mile down the road from Tamiment, and other bars and restaurants in the area. They also go to the racetrack nearby and to other resorts in the Poconos. The nearest cinema is in East Stroudsburg, twelve to fourteen miles away. When the employees are on duty, most of them, with the exception of administrative and golf personnel, wear uniforms, but the management encourages them to wear regular clothes during their off-duty hours.
The staff is transitory. During the season the number of employees varies from about 300 in the slow spring and fall periods to a peak of about 435 during the summer. They are recruited from Florida, New York, New Jersey, and Pennsylvania. Job advertisements are sent to state and federal employment agencies and to many colleges. A large number of the work force are students employed during their summer vacations. Many workers stay only a few weeks, and most do not last the entire five month season. Although the management writes each winter to the past season's employees to ascertain if they wish to return to Tamiment for the upcoming season, only about 25% to 30% of the staff do so.
The employees work a variety of shifts. Some departments of the resort, such as reservations and maintenance, are on a twenty-four hour basis; others operate for eight to sixteen hours a day. Most people are on a six day week, although some waiters and waitresses are expected to work seven days weekly. An eight hour day is standard, but the dining room and beverage people have periods on and off duty throughout the day coinciding with meal hours and the operation of the nightclub. The housekeeping staff is also employed on a staggered work day basis.
During the spring of 1969, Local 558 of the Hotel and Restaurant Employees Union began an organizing campaign throughout resorts in the Pocono Mountains. Harvey Morse, the international trustee in charge of the local (Local 558 is in trusteeship) and its local organizer, Serge Schuster, had responsibility for winning representation of the employees at Tamiment.
On or about April 1, 1969, Morse and Schuster went to Tamiment and talked with Victor H. Gerard, the Managing Director of the resort, and an associate, Alex Blaker. Morse suggested that because of a fire which had damaged Unity House, a nearby hotel owned by the International Ladies Garment Workers Union, it would be helpful for Tamiment's business if it were unionized. Gerard rejected the offer.
On May 12, the day before the season began in 1969, Schuster appeared at the gate to Tamiment, but was denied admission by the guard unless he had a permit from the management. He departed without meeting anyone and returned the next day, stationing himself near the employees' parking lot. He talked with four members of the staff. They signed authorization cards and at their request were given additional cards for other employees to sign. Schuster arranged to meet with them in a week. ...