Lechmere, Inc v. National Labor Relations Board

Decision Date27 January 1992
Docket NumberNo. 90-970,90-970
PartiesLECHMERE, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD
CourtU.S. Supreme Court
Syllabus

The National Labor Relations Act (NLRA) guarantees employees "the right to self-organization, to form, join, or assist labor organizations," § 7, and makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees" in the exercise of their § 7 rights, § 8(a)(1). Petitioner Lechmere, Inc., owns and operates a retail store located in a shopping plaza in a large metropolitan area. 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 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 distributed handbills and picketed from the grassy strip. In addition, they were able to contact directly some 20% of the employees. The union filed an unfair labor practice charge with respondent National Labor Relations Board (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, recommending that Lechmere, inter alia, be ordered to cease and desist from barring the organizers from the parking lot. The Board affirmed, relying on its ruling in Jean Country, 291 N.L.R.B. 11, that in all access cases the Board should balance (1) the degree of impairment of the § 7 right if access is denied, against (2) the degree of impairment of the private property right if access is granted, taking into consideration (3) the availability of reasonably effective alternative means of exercising the § 7 right. Id., at 14. The Court of Appeals enforced the Board's order.

Held: Lechmere did not commit an unfair labor practice by barring nonemployee union organizers from its property. Pp. 531-541.

(a) By its plain terms, the NLRA confers rights only on employees, not on unions or their nonemployee organizers. Thus, as a rule, an employer cannot be compelled to allow nonemployee organizers onto his property. NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 113, 76 S.Ct. 679, 684, 100 L.Ed. 975. Babcock's holding was neither repudiated nor modified by this Court's decisions in Central Hardware Co. v. NLRB, 407 U.S. 539, 92 S.Ct. 2238, 33 L.Ed.2d 122, and Hudgens v NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196. See also Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, 436 U.S. 180, 98 S.Ct. 1745, 56 L.Ed.2d 209. Pp. 531-535.

(b) At least as applied to nonemployee union organizers, Jean Country is inconsistent with this Court's past interpretation of § 7. Babcock's teaching is straightforward: § 7 simply does not protect nonemployee union organizers except in the rare case where "the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels." 351 U.S., at 112, 76 S.Ct., at 684. It is only when reasonable access to employees is infeasible that it becomes appropriate to balance § 7 and private property rights. Pp. 535-538.

(c) The facts in this case do not justify application of Babcock's inaccessibility exception. Because Lechmere's employees do not reside on its property, they are presumptively not "beyond the reach" of the union's message. Nor does the fact that they live in a large metropolitan area render them "inaccessible." Because the union 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. Pp. 539-541.

914 F.2d 313 (CA1 1990), reversed.

THOMAS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined. WHITE, J., filed a dissenting opinion, in which BLACKMUN, J., joined. STEVENS, J., filed a dissenting opinion.

Robert P. Joy, Boston, Mass., for petitioner.

Michael R. Dreeben, Washington, D.C., for respondent.

Justice THOMAS delivered the opinion of the Court.

This case requires us to clarify the relationship between the rights of employees under § 7 of the National Labor Relations Act, 49 Stat. 452, as amended, 29 U.S.C. § 157, and the property rights of their employers.

I

This case stems from the efforts of Local 919 of the United Food and Commercial Workers Union, AFL-CIO, to organize employees at a retail store in Newington, Connecticut, owned and operated by petitioner Lechmere, Inc. The store is located in the Lechmere Shopping Plaza, which occupies a roughly rectangular tract measuring approximately 880 feet from north to south and 740 feet from east to west. Lechmere's store is situated at the Plaza's south end, with the main parking lot to its north. A strip of 13 smaller "satellite stores" not owned by Lechmere runs along the west side of the Plaza, facing the parking lot. To the Plaza's east (where the main entrance is located) runs the Berlin Turnpike, a four-lane divided highway. The parking lot, however, does not abut the Turnpike; they are separated by a 46-foot-wide grassy strip, broken only by the Plaza's entrance. The parking lot is owned jointly by Lechmere and the developer of the satellite stores. The grassy strip is public property (except for a four-foot-wide band adjoining the parking lot, which belongs to Lechmere).

The union began its campaign to organize the store's 200 employees, none of whom was represented by a union, in June 1987. After a full-page advertisement in a local newspaper drew little response, nonemployee union organizers entered Lechmere's parking lot and began placing handbills on the windshields of cars parked in a corner of the lot used mostly by employees. Lechmere's manager immediately confronted the organizers, informed them that Lechmere prohibited solicitation or handbill distribution of any kind on its property,1 and asked them to leave. They did so, and Lechmere personnel removed the handbills. The union organizers renewed this handbilling effort in the parking lot on several subsequent occasions; each time they were asked to leave and the handbills were removed. The organizers then relocated to the public grassy strip, from where they attempted to pass out handbills to cars entering the lot during hours (before opening and after closing) when the drivers were assumed to be primarily store employees. For one month, the union organizers returned daily to the grassy strip to picket Lechmere; after that, they picketed intermittently for another six months. They also recorded the license plate numbers of cars parked in the employee parking area; with the cooperation of the Connecticut Department of Motor Vehicles, they thus secured the names and addresses of some 41 nonsupervisory employees (roughly 20% of the store's total). The union sent four mailings to these employees; it also made some attempts to contact them by phone or home visits. These mailings and visits resulted in one signed union authorization card.

Alleging that Lechmere had violated the National Labor Relations Act by barring the nonemployee organizers from its property, the union filed an unfair labor practice charge with respondent National Labor Relations Board (Board). Applying the criteria set forth by the Board in Fairmont Hotel Co., 282 N.L.R.B. 139 (1986), an administrative law judge (ALJ) ruled in the union's favor. 295 N.L.R.B. No. 15, ALJ slip op. (1988). He recommended that Lechmere be ordered, among other things, to cease and desist from barring the union organizers from the parking lot and to post in conspicuous places in the store signs proclaiming in part:

"WE WILL NOT prohibit representatives of Local 919, United Food and Commercial Workers, AFL-CIO ("the Union") or any other labor organization, from distributing union literature to our employees in the parking lot adjacent to our store in Newington, Connecticut, nor will we attempt to cause them to be removed from our parking lot for attempting to do so." Id., App. to ALJ slip op.

The Board affirmed the ALJ's judgment and adopted the recommended order, applying the analysis set forth in its opinion in Jean Country, 291 N.L.R.B. 11 (1988), which had by then replaced the short-lived Fairmont Hotel approach. 295 N.L.R.B. No. 15, Board slip op. A divided panel of the United States Court of Appeals for the First Circuit denied Lechmere's petition for review and enforced the Board's order. 914 F.2d 313 (1990). This Court granted certiorari, 499 U.S. ----, 111 S.Ct. 1305, 113 L.Ed.2d 240 (1991).

II
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, 76 S.Ct. 679, 100 L.Ed. 975 (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, 76 S.Ct., at 684, § 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.

Babcock arose out of union attempts to organize employees at a factory located on an isolated 100-acre tract. The company...

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