413 F.3d 64 (D.C. Cir. 2005), 04-1172, ITT Industries, Inc. v. N.L.R.B.

Docket Nº:04-1172, 04-1198.
Citation:413 F.3d 64
Party Name:ITT INDUSTRIES, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, AFL-CIO, Intervenor.
Case Date:June 28, 2005
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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413 F.3d 64 (D.C. Cir. 2005)




International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, AFL-CIO, Intervenor.

Nos. 04-1172, 04-1198.

United States Court of Appeals, District of Columbia Circuit

June 28, 2005

Argued April 12, 2005.

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On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Curtis L. Mack argued the cause for petitioner. With him on the briefs were Mark L. Keenan and Brennan W. Bolt.

Anne M. Lofaso, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were Arthur F. Rosenfeld, General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Linda Dreeben, Assistant General Counsel.

James B. Coppess argued the cause for intervenor. With him on the brief were Lynn K. Rhinehart and Blair K. Simmons.

Before: RANDOLPH, GARLAND, and ROBERTS, Circuit Judges.

GARLAND, Circuit Judge.

The National Labor Relations Board determined that ITT Industries, Inc. violated section 8(a)(1) of the National Labor Relations Act when it refused to permit employees from one ITT plant to distribute pro-union handbills in the parking lot of

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another ITT facility. ITT petitions for review of that decision. Because we conclude that the Board reasonably interpreted the Act, we deny the petition and grant the Board's application for enforcement of its order.


ITT Industries, Inc. is the parent company of ITT Automotive, Inc., an automotive parts manufacturer that operates ten plants, three of which are located in East Tawas, Tawas City, and Oscoda, Michigan. These are known collectively as the "Northern Plants," and each is within a short commuting distance of the others. ITT Industries, Inc., 341 N.L.R.B. No. 118, at 1 n. 4 (May 13, 2004). The East Tawas facility (the site of the handbilling in this case) is situated between the other two, 14 miles from the Oscoda facility (the plant at which the handbillers are employed) and 5-6 miles from the Tawas City facility. Id. at 1. The East Tawas and Tawas City plants have about 180 employees each, while the Oscoda plant has about 600 employees. Id. ITT has from time to time transferred employees from one plant to another. Id. at 1 & n. 5.

In 1994, the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) launched a campaign to organize employees of the Northern Plants. It lost a representation election in March 1995, but the National Labor Relations Board (NLRB) found that ITT had improperly interfered with the election and set aside the results. In early 1998, the union remounted its organizing drive. It filed an election petition in June, and the Board scheduled a representation election for July 1998. ITT stipulated that the appropriate bargaining unit would encompass nonsupervisory employees from all three plants. See ITT Industries, Inc., 331 N.L.R.B. 4, 6 (2000) ( First ITT Decision ). 1

In the spring of 1998, employees of ITT's Oscoda plant twice attempted to distribute handbills and to solicit signatures in the parking lot of the East Tawas facility. Both incidents occurred at approximately 6:00 a.m. Although the handbillers identified themselves as ITT employees from the Oscoda plant, East Tawas supervisors ordered them to leave or face arrest for trespass. Each time, the handbillers left without incident.

Thereafter, the union filed unfair labor practice charges with the NLRB, which an administrative law judge (ALJ) heard in 1999. To resolve the charge that ITT had wrongfully denied access to its off-site employees, the ALJ used the NLRB's test for evaluating employer restrictions on off-duty employees' access to areas surrounding their own work sites. That test, set forth in Tri-County Medical Center, provides: "[E]xcept where justified by business reasons, a rule which denies off-duty employees entry to parking lots, gates, and other outside nonworking areas will be found invalid." 222 N.L.R.B. 1089, 1089 (1976). Applying that rubric, the ALJ found ITT's proffered business justifications inadequate and concluded that ITT had violated section 8(a)(1) of the National Labor Relations Act (NLRA). In 2000, the Board affirmed. See First ITT Decision, 331 N.L.R.B. at 4.

ITT petitioned for judicial review, contending that the Board had overstepped its authority by granting to off-site employees more than the limited access rights of nonemployee union organizers. The test applicable to the latter, as enunciated in NLRB v. Babcock & Wilcox Co., provides

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that employers may bar nonemployee union organizers from company property, unless employees are otherwise "beyond the reach of reasonable union efforts to communicate with them." 351 U.S. 105, 113, 76 S.Ct. 679, 100 L.Ed. 975 (1956); see Lechmere, Inc. v. NLRB, 502 U.S. 527, 534, 112 S.Ct. 841, 117 L.Ed.2d 79 (1992). Nonemployees' access is so limited because "any right they may have to solicit on an employer's property is a derivative of the right of that employer's employees to exercise their organization rights effectively." Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, 436 U.S. 180, 206 n. 42, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978). In ITT's view, the Board should have applied Babcock, not Tri-County, to resolve the UAW's charges.

This court reviewed the Board's decision in ITT Industries, Inc. v. NLRB, 251 F.3d 995, 1006-07 (D.C.Cir.2001). We noted that although the Supreme Court's "access cases do not foreclose the possibility that off-site employees might enjoy some measure of free-standing, nonderivative access rights, they do make clear that the reasonableness of such an interpretation depends in large part on the Board's considered justifications for extending greater access rights to trespassing employees than trespassing nonemployee union organizers." Id. at 1004. Because we concluded that the Board had failed--in several respects detailed in Part II below--"to engage in considered analysis and explain its chosen interpretation," id., we vacated the Board's determination that ITT had committed an unfair labor practice and remanded the case for further proceedings.

The NLRB initially addressed our concerns in First Healthcare Corp., 336 N.L.R.B. 646 (2001) ( Hillhaven ), a case that posed the same issues as our remand but reached the Board first. The Board summarized its conclusions as follows:

(1) [U]nder Section 7 of the Act, offsite employees (in contrast to nonemployee union organizers) have a nonderivative access right, for organizational purposes, to their employer's facilities; (2) ... an employer may well have heightened private property-right concerns when offsite (as opposed to onsite) employees seek access to its property to exercise their Section 7 rights; but (3) ... on balance, the Section 7 organizational rights of offsite employees entitle them to access to the outside, nonworking areas of the employer's property, except where justified by business reasons, which may involve considerations not applicable to access by off-duty, onsite employees.

Id. at 648. The Sixth Circuit enforced the Board's Hillhaven order, concluding that the Board had remedied the deficiencies identified in our ITT Industries opinion, and that it had reasonably balanced the off-site employees' section 7 rights against the employer's private property interests. First Healthcare Corp. v. NLRB, 344 F.3d 523, 538, 539-40 (6th Cir.2003).

The NLRB applied the Hillhaven framework when it considered our ITT Industries decision on remand in 2004. See ITT Industries, Inc., 341 N.L.R.B. No. 118, at 4 (May 13, 2004) ( ITT Remand Decision ). First, it determined that the Oscoda employees had nonderivative section 7 rights because "the offsite employees were seeking to organize the East Tawas employees in a single, three-plant unit which included their own Oscoda plant." Id. Next, the Board examined ITT's business justification--namely, physical and personal security--for its no-access policy. Id. at 5. Finally, the Board concluded that, although "the record demonstrates that [ITT] had legitimate security concerns, ... these concerns do not justify the total exclusion of [ITT's] offsite

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employees from its parking lot." Id. Because the employer had thus "failed to present a business reason sufficient to justify prohibiting [its off-site employees'] access to the parking lot," the Board reaffirmed its earlier finding that ITT violated section 8(a)(1). Id. at 7.

In its petition for review, ITT raises essentially two points. First, it contends that the NLRB's Hillhaven test is unresponsive to our remand and is an unreasonable interpretation of the NLRA. Second, it argues that, even if the Hillhaven test is proper, its application to the instant case was unreasonable and unsupported by substantial evidence. We address the first point in Part III and the second in Part IV. We begin, however, with a more detailed discussion of the nature of our remand in ITT Industries.


Section 7 of the NLRA provides that employees "shall have the right to self-organization, [and] to form, join, or assist labor organizations." 29 U.S.C. § 157. Section 8(a)(1) declares that it "shall be an unfair labor practice for an employer ... to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in" section 7. Id. § 158(a)(1). Under the Act, "employee" is defined to "include any employee, and shall not be limited to the employees of a particular employer." Id. § 152(3).

"Like other administrative agencies, the NLRB is entitled to judicial...

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