407 U.S. 539 (1972), 70-223, Central Hardware Co. v. National Labor Relations Board

Docket Nº:No. 70-223
Citation:407 U.S. 539, 92 S.Ct. 2238, 33 L.Ed.2d 122
Party Name:Central Hardware Co. v. National Labor Relations Board
Case Date:June 22, 1972
Court:United States Supreme Court

Page 539

407 U.S. 539 (1972)

92 S.Ct. 2238, 33 L.Ed.2d 122

Central Hardware Co.


National Labor Relations Board

No. 70-223

United States Supreme Court

June 22, 1972

Argued April 18, 1972




Petitioner had a rule against solicitational activities in its stores and parking lots. The parking lots are appurtenant to petitioner's free-standing stores, and do not serve other retail establishments. Union organizers used petitioner's parking lots to solicit petitioner's employees to join the union, and petitioner ordered the organizers off its property. The union filed unfair labor practice charges against petitioner. The National Labor Relations Board (NLRB) held that enforcement of petitioner's no-solicitation rule, which it found was overly broad, violated § 8(a)(1) of the National Labor Relations Act, which proscribes interference with employees' § 7 organizational rights. The NLRB concluded that the character and use of the lots distinguished the case from NLRB v. Babcock & Wilcox Co., 351 U.S. 105, which required a "yielding" of the employer's property rights in the context of an organizational campaign only

when the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels. . . .

Id. at 112. Instead, the NLRB held applicable Food Employee v. Logan Valley Plaza, 391 U.S. 308, where peaceful picketing by union agents on a parking lot within a shopping center was held, under the circumstances existing, to be within the protection of the First Amendment. The Court of Appeals, agreeing, ordered enforcement of the NLRB's order.

Held: Logan Valley, decided on constitutional grounds, is not applicable to this § 7 case, which the Court of Appeals should now reconsider in the light of Babcock. Pp. 542-548.

439 F.2d 1321, vacated and remanded.

POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, and REHNQUIST, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which DOUGLAS and BRENNAN, JJ., joined, post, p. 548.

Page 540

POWELL, J., lead opinion

MR. JUSTICE POWELL delivered the opinion of the Court.

Petitioner, Central Hardware Co. (Central), owns and operates two retail hardware stores in Indianapolis, Indiana. Each store is housed in a large building, containing 70,000 square feet of floor space, and housing no other retail establishments. The stores are surrounded on three sides by ample parking [92 S.Ct. 2240] facilities, accommodating approximately 350 automobiles. The parking lots are owned by Central, and are maintained solely for the use of Central's customers and employees. While there are other retail establishments in the vicinity of Central's stores, these establishments are not a part of a shopping center complex, and they maintain their own separate parking lots.

Approximately a week before Central opened its stores, the Retail Clerks Union, Local 725, Retail Clerks International Association, AFL-CIO (the Union), began an organization campaign at both stores. The campaign consisted primarily of solicitation by nonemployee Union

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organizers on Central's parking lots. The nonemployee organizers confronted Central's employees in the parking lots and sought to persuade them to sign cards authorizing the Union to represent them in an appropriate bargaining unit. As a part of the organization campaign, an "undercover agent for the Union" was infiltrated into the employ of Central, receiving full-time salary from both the Union and the company. This agent solicited employees to join the Union, and obtained a list of the employees of the two stores which was about 80% complete.

Central had a no-solicitation rule which it enforced against all solicitational activities in its stores and on its parking lots. A number of employees complained to Central's local management that they were being harassed by the organizers, and these complaints were forwarded to Central's corporate headquarters in St. Louis, Missouri. The St. Louis officials directed the Indianapolis management to enforce the nonemployee no-solicitation rule and keep all Union organizers off the company premises, including the parking lots. Although most of the nonemployee Union organizers had either left Indianapolis or ceased work on the Central organization campaign, the Indianapolis management had occasion to assert the nonemployee no-solicitation rule on several occasions.

One arrest was made when a field organizer for the Union was confronted by the manager of one of the stores on its parking lot, and refused to leave after being requested to do so. The field organizer asserted that he was a "customer," and insisted upon entering the store. The police were called, and when the organizer persisted in his refusal to leave, he was arrested.

Shortly after Central received complaints from its employees as to harassment by the organizers, Central filed unfair labor practice charges against the Union.

Page 542

The Union subsequently filed unfair labor practice charges against Central. After an investigation, the General Counsel of the National Labor Relations Board (the Board) dismissed Central's charges against the Union, and issued a complaint against Central on the Union's charges.

The Board held that Central's nonemployee no-solicitation rule was overly broad, and that its enforcement violated § 8(a)(1) of the National Labor Relations Act. The Board reasoned that the character and use of Central's parking lots distinguished the case from NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), and brought it within the principle of Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308 (1968). 181 N.L.R.B. 491 (1970). A divided Court of Appeals for the Eighth Circuit agreed, and ordered enforcement of the Board's order enjoining Central from enforcing any rule prohibiting nonemployee Union organizers from using its parking lots to solicit employees on behalf of the Union. 439 F.2d 1321 (1971). We granted certiorari to consider whether the principle of Logan Valley is applicable to this case. 404 U.S. 1014 (1972). We conclude that it is not.


Section 7 of the National Labor Relations Act, as amended, 61 Stat. 140, [92 S.Ct. 2241] 29 U.S.C. § 157, guarantees to employees the right "to self-organization, to form, join, or assist labor organizations." This guarantee includes both the right of union officials to discuss organization with employees and the right of employees to discuss organization among themselves.1 Section 8(a)(1) of the Act, as amended, 29 U.S.C. § 158(a)(1), makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed"

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in § 7. But organization rights are not viable in a vacuum; their effectiveness depends in some measure on the ability of employees to learn the advantages and disadvantages of organization from others. Early in the history of the administration of the Act, the Board recognized the importance of freedom of communication to the free exercise of organization rights. See Peyton Packing Co., 49 N.L.R.B. 28 (1943), enforced, 142 F.2d 1009 (CA5), cert. denied, 323 U.S. 730 (1944).

In seeking to provide information essential to the free exercise of organization rights, union organizers have often engaged in conduct inconsistent with traditional notions of private property rights. The Board and the courts have the duty to resolve conflicts between organization rights and property rights, and to seek a proper accommodation between the two. This Court addressed the conflict which often arises between organization rights and property rights in NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956). The Babcock & Wilcox Co. operated a manufacturing plant on a 100-acre tract about one mile from a community of 21,000 people. The plant buildings were enclosed within a fence, employee access being through several gates. Approximately 90% of the employees drove to work in private cars, and the company maintained a parking lot for the employees. Only employees and deliverymen normally used the parking lot. The company had a rule forbidding the distribution of literature on company property. The Board found that the company's parking lot and the walkway leading from it to the plant entrance were the only "safe and practicable" places in the vicinity of the plant for distribution of union literature, and held the company guilty of an unfair labor practice for enforcing the no-distribution rule, and thereby...

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