Inc. v. NLRB Lechmere

Petitioner
Lechmere, Inc.
Respondent
National Labor Relations Board
Petitioner's Claim
That prohibiting distribution of organizational literature and evicting non-employees for trespassing on private parking property was justifiable.
Chief Lawyer for Petitioner
Robert P. Joy
Chief Lawyer for Respondent
Michael R. Dreeben
Justices for the Court
Anthony M. Kennedy, Sandra Day O'Connor, William H. Rehnquist, Antonin Scalia, David H. Souter, Clarence Thomas (writing for the Court)
Justices Dissenting
Harry A. Blackmun, John Paul Stevens, Byron R. White
Place
Washington, D.C.
Date of Decision
27 January 1992
Decision
Lechmere, Inc. did not violate the National Labor Party Act by forbidding communication between non-employee union organizers and (Lechmere) employees onprivate parking property.
Significance
The main issue confronted in this case was whether rights of employees underprovision seven of the National Labor Relations Act superseded the property rights of their employer. The U.S. Supreme Court held that the method of trespass (in this case using the petitioner's parking lot to communicate with their employees by placing hand bills on car windshields) as well as any other alternative, was inappropriate and unlawful. The Court ruled that no "unfair labor practice" occurred when the petitioners barred non-employee union organizers because private property rights were inviolate.
In an effort to organize about 200 employees working in the shopping plaza owned and operated by Lechmere, Inc., the United Food and Commercial Workers Union initiated recruitment operations in the petitioner's parking lot. The union placed leaflets on windshields of cars in a parking zone which they assumed was used by employees. (Prior to this action, advertisements in a local newspaper did not give results; union organizers had found a leaflet strategy practical.) However, Lechmere banned this kind of solicitation on his property,and organizers were asked to leave plaza property. Lechmere removed all thehandbills.
Because Lechmere Inc. occupied and operated their shopping plaza in a large metropolitan area, the parking property was separated from an adjacent highwayby a 4-foot grassy strip. From that public location, union organizers started to pass out handbills to passing motorists. For one month, the union practiced this mode of informing employees (early in the morning and late in the evening, assuming that passing drivers were primarily store employees) and theypicketed Lechmere. However, union efforts were to no avail. Even mailing andphone contact (with approximately 20 percent of Lechmere employees) did notresult in more than one signature on a union authorization card.
Unfair Labor Practices Charged
In view of the petitioner's ban on members of non-employee unions from organizing their activities on private corporate property, the firm was sued by theunion. The union's suit charged Lechmere with "unfair labor practice" and maintained its ban violated provisions of the National Labor Relations Act. Consequently, the National Labor Relations Board joined the union as a co-respondent. The suit was initially presented to an Administrative Law Judge (ALJ) who held that the petitioner should not ban union organizers from the parkingzone. The ALJ also ruled Lechmere should make a public proclamation that representatives of the union would be permitted to distribute their literature toemployees and that they would not be limited to access to parking areas. TheNational Labor Relations Board (NLRB) accepted and approved the recommendedorder of the ALJ. Lechmere appealed to the U.S. Court of Appeals for the First Circuit, which affirmed the board's ruling. Again, the petitioner appealedto the higher, U.S. Supreme Court and was granted a hearing on certiorari.
Section 7 of the National Labor Relations Act (NLRA) stipulates that "employees shall have right to self-organization, to form, join, or assist labor organizations." Further, section 8 recognizes the illegality of an employer engaging in "unfair labor practice . . . to interfere with, restraint, or coerce employees in the exercise of rights guaranteed in (section) 7." These two sections of the NLRA were the legal statutes on which the respondent (the National Labor Relations Board) presented arguments against the petitioner when thecase came before the Supreme Court.
Property Rights Upheld
The U.S. Supreme Court majority opinion held that barring non-employee unionorganizers from access and occupation of corporate property did not representan "unfair labor practice." The majority decision relied, in part, on NLRB v. Babcock (1956), in which a litigant successfully challenged a company ban on a non-employee union from recruiting in a company parking lot. Although that decision recognized the legitimate attempts of unions to organize employees, the Court recognized that the "right to distribute (union literature) is not absolute, but must be accommodated to the circumstances." They explained that circumstances might warrant permission to trespass on private property whenever distribution of "organizational literature" was especially difficult. In Babcock, such circumstances were present. Thus the company was ordered to permit organizers access to private company property in order todistribute materials. But, the Court rejected the endorsement of the National Labor Relations Board which directed Lechmere to permit unimpeded access ofunion organizers to employees on corporate property because "an employer cannot be compelled to allow distribution of union literature by non-employee organizers on his property." The justices felt that the only exception which could mandate requiring an employer to permit access to employees on company property was if employees were "beyond the reach" of information about their right to organize. The Court further cited precedence set in Central Hardware Co. v. NLRB (1972) and in Hudgens v. National Labor Relations Board (1976) wherein similar sets of circumstances existed (as in the Lechmere case). The need to provide "accommodation" of employees rights according to section 7 of the NLRA only superseded an employer's property rights when access to employees was not feasible. Compromise did not have to be discussed when access to employees was otherwise feasible.
Citing the Babcock case, the majority justices concluded that the NLRAdid not extend protection to non-employee union organizers but rather, applied to exceptional circumstances where "the inaccessibility of employees makesineffective the reasonable attempts by non-employees to communicate with them through the usual channels." As long as non-employee union organizers had alternative access to employees, the right for employees to self-organize without interference by an employer (according to sections 7 and 8 of the NLRA) was not violated. Moreover, according to Babcock, the Court opined that"an employer may validly post his property against non-employee distributionof union literature." Accordingly, the Supreme Court cited two additional reasons why the National Labor Relations Board improperly endorsed lower courtrulings. The union had other avenues available for "nontrespassory access" toemployees and (according to Babcock) there existed no clear evidencethat the petitioner's denial of union access to its private property automatically created a circumstance wherein it became unrealistic for the union to reach employees and communicate with them in any other way. Prohibiting trespass on the petitioner's private parking lot did not place employees "beyond the reach," of union organizers since other means of communication were available (mailings, phone calls, home visits, and advertising). Furthermore, sinceunion non-employee organizers had been able to picket at the entrance of theshopping center for a period of time, the Court found the respondent's argument was flawed.
Minority Opinion
Three justices joined in a dissenting opinion which faulted the Court for itsready recognition of the necessity to allow union communication with employees to inform them of the advantages of self-organization despite the fact that non-employee organizers were unable to gain access to private property in order to accomplish that goal. The minority justices felt that the Court's findings were inconsistent and misunderstood the narrow parameters of the NLRB v. Babcock decision in 1956. Inaccessibility to employees could not bethe only justifiable basis under which labor organizers could demand access to private property. Although the Court felt that picketing and signs on an adjacent and public grassy strip were sufficient, the dissenting justices reasoned that union organizers did not have appropriate access to employees. Rather, balancing the rights of employees against private property rights according to the right of access criteria (established by the National Labor Relations Board) had to be considered regardless of whether alternatives existed which provided a means of communicating with employees. Specifically, the decision to order compliance with the NLRA also depended on determining which effectwas most damaging, "the degree of impairment" sustained by employees if access to them was denied a labor organization or "the degree of impairment" sustained by the private property owner if trespass was ordered.
The minority justices reasoned it was inappropriate, according to section 7 of the NLRA, to regard its provisions as applicable only to employees and notto non-employee union organizers. They recognized that the purpose of communicating with employees directly, to appropriately advise and augment self-organization, could not be limited because employees were isolated in the workplace. For that purpose, alternative methods of approach were marginally effective. The dissenting justices also felt that rules pertaining to the right of self-organization and labor organizations made no distinction between employees and non-employees. Finally, they reasoned that strict holdings in Babcock were inharmonious with later judgments of the U.S. Supreme Court.
Impact
In rendering its decision in Lechmere, Inc. v. NLRB the U.S. Supreme Court held that private property rights could not be superseded even when non-employee organizers engaged in trespassing on private company property to solicit employee involvement in union-sponsored, self-organization. Stressing that the National Labor Relations Act (NLRA) conferred rights only to employees(not to non-employee organizers), the Court produced a ruling which reset boundaries in which organized labor could operate. Lechmere, Inc. (and, therefore, all employers) could bar union organizers from its property, whenever there existed alternative methods of communication with employees in order to inform them about their rights to organize. Accommodation of efforts by labor unions did not always entail unequivocal access to employer-owned property. The Court explained that "non-employee organizational trespassing had generallybeen prohibited except where unique obstacles prevented nontrespassory methods of communication." Justices thus held that provisions of the National Labor Relations Act were enforceable only if employees were "beyond the reach ofreasonable union efforts to communicate with them." Private property rights otherwise superseded the right of unions efforts to enable self-organization by employees.
Related Cases

• NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956).
  
• Central Hardware Co. v. NLRB, 407 U.S. 539 (1972).
  
• Hudgens v. National Labor Relations Board, 424 U.S. 507 (1976).