Supreme Court Limits Union Access to Employer Property
A frequently arising issue under the National Labor Relations Act (the "NLRA") is the extent to which non-employee union organizers may enter an employer's private property in their efforts to organize employees. On January 27, 1992, the U.S. Supreme Court ruled that an employer may bar non-employee union organizers from distributing leaflets on private property if the union has other reasonable means of communicating its message to the employees. Lechmere, Inc. v. NLRB, 112 S.Ct. 841 (1992). In an opinion authored by Justice Thomas, the Court overturned contrary rulings of the National Labor Relations Board (the "NLRB") and the U.S. Court of Appeals for the First Circuit.
The employer in the case, Lechmere, owns several retail stores in New England that sell appliances, audio/visual equipment and sporting goods. The conflict arose in June of 1987 when Local 919 of the United Food and Commercial Workers Union attempted to organize workers at a Lechmere store located in a Connecticut shopping plaza.
The union first attempted to reach the Lechmere employees with a full-page advertisement in a local newspaper. After receiving little response, the union organizers entered the Lechmere parking lot and placed union literature on the windshields of cars parked in a corner of the lot used primarily by employees. Lechmere had a long-standing policy against soliciting and handbilling by non-employees that was consistently enforced, even against organizations such as the Girl Scouts and The Salvation Army. Lechmere personnel asked the organizers to leave the parking lot, and then removed the handbills. On several subsequent occasions, the organizers returned. Each time Lechmere personnel asked them to leave, and removed the handbills from the employees' cars.
The organizers subsequently moved to a strip of grass on public property abutting the parking lot, where they attempted to pass union literature to cars entering the lot. The organizers picketed on the grassy strip every day for one month, then intermittently for another six months. In addition, by tracing the license plate numbers of cars observed in the employee parking area, the union was able to secure the names and addresses of 41 employees, about 20% of the work force. The union attempted to contact these employees through mailings, telephone calls and home visits. All of these efforts by the union yielded only one signed authorization card.
The union filed an unfair labor practice charge with the NLRB, alleging that Lechmere had violated the NLRA by banning the non-employee union organizers from its property. An administrative law judge agreed with the union's position and the NLRB affirmed, holding that Lechmere failed to satisfy the standard for denying the union access to employer property which the NLRB had set forth in an earlier case, Jean Country, 291 N.L.R.B. 11 (1988).
In Jean Country, the NLRB noted that disputes over a union's access to an employer's property involve competing interests: the employer's private property rights and the right of the employees under Section 7 of the NLRA to engage in union organizational activity and to receive information about the union from outsiders. The NLRB in Jean Country held that, in resolving such disputes, it would consider three factors: the degree of the impairment to the employees' right to organize under Section 7, the degree of impairment to the employer's private property rights, and the availability of "reasonably effective alternative ways" of reaching the targeted employees.
In upholding the NLRB's application of these factors in the Lechmere case, a divided panel of the U.S. Court of Appeals for the First Circuit asserted that the Jean Country test strikes a reasonable balance between employees' Section 7 rights and an employer's private property rights. Lechmere, Inc. v. NLRB, 914 F.2d 313 (1st Cir. 1990). A dissenting Judge, however, found the Jean Country test to be inconsistent with the Supreme Court's decision in NLRB v. Babcock & Wilcox, Inc., 351 U.S. 105 (1956), which held that an employer's private property rights would prevail if reasonable alternate means of communication were available to the union. The dissent argued that by permitting the exclusion of union organizers from the employer's property only where the union's alternative form of communication was effective, the Jean Country test impermissibly altered the union/employer balance contemplated by the Babcock & Wilcox decision. In its petition for review to the Supreme Court, Lechmere argued that Jean Country drastically tilted the balance in favor of the union, since it is almost always more effective to handbill at the worksite than to undertake alternative measures such as placing newspaper advertisements or picketing on public property off the employer's premises.
The Supreme Court agreed with the employer and the dissenting judge from the First Circuit, finding that under Babcock & Wilcox, access to employees, not effectiveness in winning them over, is the critical issue. The Court ruled that the plain terms of the NLRA confer rights only on employees, not non-employee union organizers, and that the union had failed to prove that any unique obstacles prevented it from communicating its message to employees by means other than trespassing on Lechmere's property.
The Lechmere decision, by adhering to Babcock & Wilcox and rejecting Jean Country, makes it clear that employers may enforce non-discriminatory rules that bar non-employee organizers from distributing literature on company property, unless circumstances are such that the targeted employees are otherwise beyond the reach of the union's message. The exceptions to Babcock & Wilcox are quite narrow and the union's burden in establishing an exception is a heavy one. Examples of situations meeting the exacting standards for an exception to this general rule include logging camps, mining camps and mountain resort hotels, where employees live in isolated surroundings on the employer's property. Indeed, the Lechmere Court held that employees who do not reside on company property are "presumptively not beyond the reach" of the union's message. The burden is on the union to show that it has no reasonable means of communicating its organizational message to the employees other than by trespassing; the union in the Lechmere case failed to carry its burden of demonstrating that it faced any such unique obstacles in gaining access to the Lechmere employees.
The Lechmere decision portends that future union organizing campaigns will often be difficult and expensive, especially when opportunities for face-to-face contact with employees are limited. Prior NLRB decisions which in some instances permitted non-employee organizers to handbill in office building lobbies or company parking lots are, in most cases, no longer valid. As long as some reasonable means to communicate with employees is available without trespassing, non-employee union organizers may not rely on the easier method of handbilling employees on company property. It is of importance, however, that the Lechmere rule is limited to employers who maintain and enforce non-discriminatory policies barring all forms of solicitation or distribution of literature by non-employees on company property. Such a rule cannot be created or selectively enforced solely to limit union organizers.