Inc. v. NLRB Lechmere

Three justices joined in a dissenting opinion which faulted the Court for its ready 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 be the 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 effect was 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 not to 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.