Reference no: EM131281124

[Petitioner Lechmere, Inc., owns and operates a retail store located in a shopping plaza in Newington, a suburb of Hartford, Connecticut. Lechmere is also part owner of the plaza's parking lot, which is separated from a public highway by a 46-foot-wide grassy strip, almost all of which is public property. In a campaign to organize Lechmere employees, nonemployee union organizers from Local 919 of the UFCW union placed handbills on the windshields of cars parked in the employees' part of the parking lot. After Lechmere denied the organizers access to the lot, they picketed from the grassy strip. In addition, they were able to contact directly some 20 percent of the employees. The union filed an unfair labor practicecharge with the Board, alleging that Lechmere had violated the NLRA by barring the organizers from its property. An administrative law judge ruled in the union's favor. The Board affirmed, and the court of appeals enforced the Board's order.] THOMAS, J....

A. Section 7 of the NLRA provides in relevant part that "[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations." 29 U.S.C. § 157. Section 8(a)(1) of the Act, in turn, makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of rights guaranteed in [§ 7]." 29 U.S.C. § 158(a)(1). By its plain terms, thus, the NLRA confers rights only on employees, not on unions or their nonemployee organizers. In NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), however, we recognized that insofar as the employees' "right of self-organization depends in some measure on [their] ability... to learn the advantages of self-organization from others," id., at 113, § 7 of the NLRA may, in certain limited circumstances, restrict an employer's right to exclude nonemployee union organizers from his property.

It is the nature of those circumstances that we explore today.... [In Babcock, the Board ordered the company to allow the nonemployee organizers to distribute literature on its parking lot and walkways; the court of appeals refused to enforce the order; and the Supreme Court decided to hear the case.] While recognizing that "the Board has the responsibility of ‘applying the Act's general prohibitory language in the light of the infinite combinations of events which might be charged as violative of its terms,'" 351 U.S., at 111- 112 (quoting NLRB v. Stowe Spinning Co., 336 U.S. 226, 231 (1949)), we [the Supreme Court] explained that the Board had erred by failing to make the critical distinction between the organizing activities of employees (to whom § 7 guarantees the right of self-organization) and nonemployees (to whom § 7 applies only derivatively).

Thus, while "[n]o restriction may be placed on the employees' right to discuss self-organization among themselves, unless the employer can demonstrate that a restriction is necessary to maintain production or discipline," 351 U.S., at 113 (emphasis added) (citing Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 (1945)), "no such obligation is owed non-employee organizers," 351 U.S., at 113. As a rule, then, an employer cannot be compelled to allow distribution of union literature by nonemployee organizers on his property. As with many other rules, however, we recognized an exception.

Where "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," ibid., employers' property rights may be "required to yield to the extent needed to permit communication of information on the right to organize," id., at 112.... B. The threshold inquiry in this case, then, is whether the facts here justify application of Babcock's inaccessibility exception. The ALJ below observed that "the facts herein convince me that reasonable alternative means [of communicating with Lechmere's employees] were available to the Union," 295 N.L.R.B. No. 15, ALJ slip op., at 9 (emphasis added).

Reviewing the ALJ's decision under Jean Country, however, the Board reached a different conclusion on this point, asserting that "there was no reasonable, effective alternative means available for the Union to communicate its message to [Lechmere's] employees." 295 N.L.R.B. No. 15, Board slip op., at 4-5. We cannot accept the Board's conclusion, because it "rest[s] on erroneous legal foundations." As we have explained, the exception to Babcock's rule is a narrow one.

It does not apply wherever nontrespassory access to employees may be cumbersome or lessthan-ideally effective, but only where "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," 351 U.S., at 113 (emphasis added). Classic examples include logging camps, ... mining camps, ... and mountain resort hotels, ... Babcock's exception was crafted precisely to protect the § 7 rights of those employees who, by virtue of their employment, are isolated from the ordinary flow of information that characterizes our society.

The union's burden of establishing such isolation is, as we have explained, "a heavy one," and one not satisfied by mere conjecture or the expression of doubts concerning the effectiveness of nontrespassory means of communication. The Board's conclusion in this case that the union had no reasonable means short of trespass to make Lechmere's employees aware of its organizational continuedefforts is based on a misunderstanding of the limited scope of this exception.

Because the employees do not reside on Lechmere's property, they are presumptively not "beyond the reach," Babcock, supra, at 113, of the union's message. Although the employees live in a large metropolitan area (Greater Hartford), that fact does not in itself render them "inaccessible" in the sense contemplated by Babcock. Their accessibility is suggested by the union's success in contacting a substantial percentage of them directly, via mailings, phone calls, and home visits. Such direct contact, of course, is not a necessary element of "reasonably effective" communication; signs or advertising also may suffice.

In this case, the union tried advertising in local newspapers; the Board said that this was not reasonably effective because it was expensive and might not reach the employees. 295 N.L.R.B. No. 15, Board slip op., at 4-5. Whatever the merits of that conclusion, other alternative means of communication were readily available. Thus, signs (displayed, for example, from the public grassy strip adjoining Lechmere's parking lot) would have informed the employees about the union's organizational efforts. (Indeed, union organizers picketed the shopping center's main entrance for months as employees came and went every day.)

Access to employees, not success in winning them over, is the critical issue-although success, or lack thereof, may be relevant in determining whether reasonable access exists. Because the union in this case failed to establish the existence of any "unique obstacles," that frustrated access to Lechmere's employees, the Board erred in concluding that Lechmere committed an unfair labor practice by barring the nonemployee organizers from its property. *** The judgment of the First Circuit is therefore reversed, and enforcement of the Board's order denied. It is so ordered. JUSTICE WHITE, with whom JUSTICE BLACKMUN joins, Dissenting....

In the case before us, the Court holds that Babcock itself stated the correct accommodation between property and organizational rights; it interprets that case as construing §§7 and 8(a)(1) of the National Labor Relations Act to contain a general rule forbidding third-party access, subject only to a limited exception where the union demonstrates that the location of the employer's place of business and the living quarters of the employees place the employees beyond the reach of reasonable efforts to communicate with them. The Court refuses to enforce the Board's order in this case, which rested on its prior decision in Jean Country, 291 N.L.R.B. 11 (1988), because, in the Court's view, Jean Country revealed that the Board misunderstood the basic holding in Babcock, as well as the narrowness of the exception to the general rule announced in that case.

For several reasons, the Court errs in this case.... ... [T]he Court in Babcock recognized that actual communication with nonemployee organizers, not mere notice that an organizing campaign exists, is necessary to vindicate § 7 rights, 351 U.S., at 113. If employees are entitled to learn from others the advantages of self-organization, ibid., it is singularly unpersuasive to suggest that the union has sufficient access for this purpose by being able to hold up signs from a public grassy strip adjacent to the highway leading to the parking lot. Second, the Court's reading of Babcock is not the reading of that case reflected in later opinions of the Court. We have consistently declined to define the principle of Babcock as a general rule subject to narrow exceptions, and have instead repeatedly reaffirmed that the standard is a neutral and flexible rule of accommodation. Third, and more fundamentally, Babcock is at odds with modern concepts of deference to an administrative agency charged with administering a statute....

Case Questions

1. State the Babcock rule as set forth in the majority opinion. Is the exception to the rule a broad one?

2. Did the nonemployee union organizers have reasonable access to Lechmere employees outside the employer's property?

3. Did the dissent agree that there was sufficient access given the union organizers, as they were able to hold up signs from a grassy strip adjacent to the highway?