Metropolitan v. NLRB

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
10-25-1995
Metropolitan v NLRB
Precedential or Non-Precedential:
Docket 95-3086
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Recommended Citation
"Metropolitan v NLRB" (1995). 1995 Decisions. Paper 281.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/281
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 95-3086
METROPOLITAN DISTRICT COUNCIL
OF PHILADELPHIA AND VICINITY
UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF
AMERICA, AFL-CIO,
Petitioner
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent
On Appeal from a Final Decision
and Order of the National Labor
Relations Board
(No. 4-CA-18791)
Submitted October 12, 1995
BEFORE: GREENBERG and LEWIS, Circuit Judges,
and VANARTSDALEN, District Judge*
(Filed: October 25, 1995)
Richard C. McNeill, Jr.
Sagot, Jennings & Sigmond
1172 Public Ledger Bldg.
Philadelphia, PA 19106
Kathy Krieger
101 Constitution Ave., NW
Washington, DC 20001
1
* Honorable Donald W. VanArtsdalen, Senior Judge of the United
States District Court for the Eastern District of Pennsylvania,
sitting by designation.
David M. Silberman
Laurence Gold
815 16th Street, NW
Washington, DC 20006
Cynthia C. Estland
727 E. 2nd Street
Austin, TX 78705
Attorneys for Petitioner
Frederick L. Feinstein
General Counsel
Linda Sher
Acting Associate General Counsel
Aileen A. Armstrong
Deputy Associate General Counsel
Robert J. Englehart
Margaret G. Neigus
National Labor Relations Board
1099 14th Street, N.W.
Suite 10700
Washington, DC 20570-0001
Attorneys for Respondent
OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. PROCEDURAL AND FACTUAL HISTORY
The Metropolitan District Council of Philadelphia and
Vicinity, United Brotherhood of Carpenters and Joiners of
America, petitions this court for review of a Decision and Order
of the National Labor Relations Board dismissing an unfair labor
practice complaint against Leslie Homes, Inc. The Board found
2
that Leslie Homes did not violate section 8(a)(1) of the National
Labor Relations Act, 29 U.S.C. § 158(a)(1), when it denied
petitioner's representatives access to its property to distribute
"area standards" handbills to potential purchasers of
condominiums which Leslie Homes was constructing. The Board had
jurisdiction under 29 U.S.C. § 160(a), and we have jurisdiction
under 29 U.S.C. § 160(f).
The facts are not in dispute and are as follows. Leslie
Homes began constructing Crestwood, a 288 unit condominium
project, on its property in Bristol, Pennsylvania, in 1988. At
the outset of construction the petitioner represented the
carpenters on the project. In December 1989, however, Leslie
Homes started to employ nonunion carpenters at wage rates and
with benefits below prevailing union standards. In response, the
petitioner, on April 1, 1990, attempted to distribute handbills
to prospective condominium purchasers at Crestwood. The
handbills asserted that Leslie Homes was employing
"foreign/immigrant workers" paid substantially less than
prevailing, i.e., union wages and benefits, thereby "destroying"
the fair wages and living standards of area tradesmen. To
distribute the handbills, petitioner's representatives stood on
the sidewalk and walkway in front of a model condominium. But
Leslie Homes would not permit the distribution of the handbills
on its property and, consequently, it directed the handbillers to
leave. They refused to leave until the local police at Leslie
Homes's request directed them to do so. Subsequently, they
3
distributed the handbills on a public road abutting Leslie
Homes's property.
These events led petitioner to file an unfair labor
practice charge with the Board, which filing resulted in the
Board's General Counsel issuing a complaint on September 27,
1990, contending that Leslie Homes violated section 8(a)(1) of
the NLRA by calling the police to eject petitioner's handbillers.
Inasmuch as the parties stipulated to the facts, they waived a
hearing before an administrative law judge. Consequently, the
Board transferred the proceeding directly to it. While the
matter was pending before the Board, the Supreme Court decided
Lechmere, Inc. v. NLRB, 502 U.S. 527, 112 S. Ct. 841 (1992), which
involved issues similar to those here. Predicated on Lechmere,
the General Counsel moved to dismiss the complaint. The Board,
in a split decision on January 25, 1995, issued its Decision and
Order dismissing the complaint. The petitioner then initiated
the proceedings now before us.
II. STANDARD OF REVIEW
The parties dispute the standard of review. The
petitioner contends that the Board decided the matter on legal
grounds by interpreting and applying Supreme Court precedent and
it thus contends that in this case we "exercise plenary review of
[a] question[ ] of law." Tubari Ltd. v. NLRB, 959 F.2d 451, 453
(3d Cir. 1993). It also cites NLRB v. Greensburg Coca-Cola
Bottling Co., 40 F.3d 669, 673 (3d Cir. 1994), and Furniture
Renters of America, Inc. v. NLRB, 36 F.3d 1240, 1248 (3d Cir.
4
1994), in support of this contention. On the other hand, the
Board urges that our review is deferential both as to the Board's
conclusions of law and its application of the law to the facts.
It cites NLRB v. Local Union No. 103, 434 U.S. 335, 350, 98 S. Ct.
651, 660 (1978), and Universal Camera Corp. v. NLRB, 340 U.S.
474, 488, 71 S. Ct. 456, 465 (1951), in support of this
contention. We will not linger on the point, because even
exercising plenary review we agree with the Board and thus will
deny the petition.
III. DISCUSSION
As is often the situation in labor law, this case
arises at the intersection of two claims. On the one hand,
Leslie Homes, at common law and thus under Pennsylvania law, has
the general right to decide who may come on to its property. On
the other hand, under section 7 of the NLRA, 29 U.S.C. § 157, the
right of employees "to self-organization, to form, join, or
assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection" includes union activity intended
to protect the area wage and benefit standards that a union has
negotiated for its members. Giant Food Markets, Inc. v. NLRB,
633 F.2d 18, 23 (6th Cir. 1980). "Area standards" activity, such
as that involved in this case, is intended to protect wage and
benefit standards by exerting pressure on nonunion employers with
a competitive advantage over union employers who pay higher
5
wages. Sears, Roebuck & Co. v. San Diego County Dist. Council of
Carpenters, 436 U.S. 180, 206 n.42, 98 S. Ct. 1745, 1762 n.42
(1978). Thus, in this case the conflict is obvious: petitioner
sought to engage in activities sanctioned under the NLRA on
property where Leslie Homes exercised its property rights to
exclude petitioner's representatives.
The Supreme Court first balanced the property rights of
an employer with its employees' rights to engage in concerted
activity in Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65
S. Ct. 982 (1945). There it held that generally an employer can
be compelled to allow its employees to distribute literature on
its property. However, in NLRB v. Babcock and Wilcox, 351 U.S.
105, 112, 76 S. Ct. 679, 684 (1956), the Court distinguished
Republic Aviation and held that in general an employer cannot be
compelled to allow nonemployee organizers to distribute union
literature on its property. Id. at 112, 76 S.Ct. at 684. But
Babcock included an exception that the employer must grant access
if nonemployees may not by other reasonable methods communicate
with the employees.1
It is not surprising that the Board frequently has
addressed the issues raised by unions' reliance on section 7 to
pursue their activities on employers' property. Ultimately, in
Jean Country, 291 N.L.R.B. 11 (1988), it determined that it would
apply a balancing test to accommodate an employer's and its
1
The Court also indicated that the employer may not discriminate
against the union if it allows other distributions on its
property. Babcock, 351 U.S. at 112, 76 S. Ct. at 684. We are not
concerned with that situation in this case.
6
employees' interests. In this process, the Board would consider
"the availability of reasonably effective alternative means [of
exercising the section 7 rights] as especially significant." Id.
at 14. As might be expected when a balancing test is applied,
the Board thought that the standards governing the application of
the balancing test would be developed in an evolutionary process.
The regime of Jean Country did not long survive. In
Lechmere, Inc. v. NLRB, 502 U.S. 527, 112 S. Ct. 841, the Supreme
Court addressed a situation in which Lechmere, the employer,
barred nonemployee union organizers from its property. The
organizers had been placing handbills on the windshields of cars
in a parking lot used by employees. The Board found that
Lechmere's actions constituted an unfair labor practice and
ordered Lechmere to cease and desist from barring the union
organizers from the parking lot. The Court of Appeals for the
First Circuit denied Lechmere's petition for review and enforced
the order. Lechmere, Inc. v. NLRB, 914 F.2d 313 (1st Cir. 1990).
The Supreme Court reversed. It pointed out that by its
plain terms the NLRA confers rights only on employees and not on
unions or their nonemployee organizers. 502 U.S. at 531-32, 112
S.Ct. at 845. The Court then indicated that, in Babcock, it had
recognized that section 7 of the NLRA "may, in certain limited
circumstances, restrict an employer's right to exclude
nonemployee union organizers from his property." Id. at 532, 112
S.Ct. at 845. Nevertheless, "[a]s a rule . . . an employer
cannot be compelled to allow distribution of union literature by
nonemployee organizers on his property." Id. at 533, 112 S. Ct.
7
at 846. The Court said that neither Central Hardware Co. v.
NLRB, 407 U.S. 539, 92 S. Ct. 2238 (1972), nor Hudgens v. NLRB,
424 U.S. 507, 96 S. Ct. 1029 (1976), modified "Babcock's holding
that an employer need not accommodate nonemployee organizers
unless the employees are otherwise inaccessible." Id. at 534,
112 S.Ct. at 846. The Court next pointed out that in Sears,
Roebuck & Co. it had held "that arguable § 7 claims do not pre-
empt state trespass law, in large part because the trespasses of
nonemployee union organizers are 'far more likely to be
unprotected than protected.'" Id. at 535, 112 S.Ct. at 846-47.
The Court then considered Jean Country which it
described as representing "the Board's latest attempt to
implement the rights guaranteed by § 7." 502 U.S. at 535, 112
S.Ct. at 847. The Court said the Board concluded in Jean Country
"that it was appropriate to approach every case by balancing § 7
rights against property rights, with alternative means of access
thrown in as nothing more than an 'especially significant'
consideration." Id. at 538, 112 S.Ct. at 848. But the Court
rejected Jean Country, holding that "[s]o long as nonemployee
union organizers have reasonable access to employees outside an
employer's property, the requisite accommodation has taken place.
It is only where such access is infeasible that it becomes
necessary and proper to take the accommodation inquiry to a
second level, balancing the employees' and employers' rights."
Id.
Lechmere clearly is controlling here. In this case the
Board assumed, without deciding, "that Lechmere permits a union
8
to show that an employer's customers are not reasonably
accessible by nontresspassory methods, and that union
representatives therefore may be entitled to engage in area
standards activities on the employer's property." 316 N.L.R.B. 123,
129 (1995). It concluded, however, "that reasonable alternative
means were available to the [petitioner] for communicating its
area standards message to potential customers of [Leslie Homes]."
Id. at 131. The petitioner expressly disclaims challenging this
finding. Brief at 5. Consequently, we are constrained, as the
petitioner itself asserts, simply to determine whether the Board
applied the correct legal standard because the facts are not in
dispute.
On this point we have no doubt. It is beyond argument
that Lechmere was concerned with protecting private property
interests. We can conceive of no reason why this policy would be
any less compelling in a case in which a union was engaged in
area standards handbilling than in a case where the union was
engaged in direct organizational activity. Indeed, it might be
supposed that, if anything, the employer's rights would be
greater when area standards handbilling is involved. In this
regard we observe that whereas the interests of potential
customers of the employer are tangential to the dispute between
the employer and the union, the employer's employees have a
significant interest in a union's organizational activity. See
Sears, Roebuck & Co., 436 U.S. at 206 n.42, 98 S. Ct. at 1762 n.42
("[S]everal factors make the argument for protection of
trespassory area-standards picketing as a category of conduct
9
less compelling than that for trespassing organizational
solicitation.).2
Petitioner seeks to avoid this result by playing on the
distinction between direct and derivative rights in section 7.
Petitioner points out that in Lechmere, the nonemployee union
organizers were asserting an indirect right of access to the
employer's property in order to encourage the employees to
organize. Lechmere, 112 S. Ct. at 846. This derivative right is
based on the fact that "[t]he right of self-organization depends
in some measure on the ability of employees to learn the
advantages of self-organization from others." Babcock, 351 U.S.
at 113, 76 S.Ct. at 685. The present case is distinguishable,
petitioner contends, because here the union organizers were
exercising a different section 7 right altogether, namely, their
right as the representatives of a group of employees to engage in
concerted activities for their mutual aid and protection.
Petitioner concludes from this that Lechmere does not control
2
We note that our opinion accords generally with the reading of
Lechmere in other circuits. The Court of Appeals for the Sixth
Circuit recently emphasized that "[u]nder the § 7 hierarchy of
protected activity imposed by the Supreme Court, non-employee
area-standards picketing warrants even less protection than non-
employee organizational activity." NLRB v. Great Scot, Inc., 39
F.3d 678, 682 (6th Cir. 1994). The Court of Appeals for the
Ninth Circuit has refused even to apply Lechmere's
"inaccessibility exception" where nonemployees target customers
as opposed to employees. Sparks Nugget, Inc. v. NLRB, 968 F.2d
991, 997-98 (9th Cir. 1992). Of course, we have no reason to
consider whether the "inaccessibility exception" could apply in
this case, as petitioner does not challenge the Board's finding
that petitioner had other means to communicate with Leslie
Homes's customers.
10
this case and that we should remand the cause to the NLRB for
reconsideration.3
We decline to read Lechmere so narrowly. The question
is not whether the right is described more aptly as direct or
derivative, but whether the private property rights of an
employer must give way to the rights of nonemployee interlopers.
We believe that primary thrust of Lechmere was to reemphasize the
protection of employers' private property rights against
unwarranted intrusions by nonemployees. The "distinction 'of
substance'" is between the employees of the employer who is
asserting his property rights and individuals who do not work for
that employer but seek access to his property. Lechmere, 112
S. Ct. at 848 (citing Babcock, 351 U.S. at 113, 76 S.Ct. at 684).
In other words, the rule tracks the rather common-sense notion
that an employer has greater rights against outsiders and
strangers to his property than he has against those he invites to
work for him.
The case law in this area consistently has analyzed
these issues in terms of property owners versus interlopers, and
we believe that the protections afforded property owners against
trespassory invasions apply whether the outsiders are union
organizers representing employees from other businesses or union
organizers acting independently. The case finally gets down to
this easily understandable rule of law: a nonemployee does not
3
The Board in its brief suggests that Lechmere itself involved
direct rather than derivative rights. In view of our conclusions
we do not reach this point and instead will treat that case as
involving derivative rights.
11
have a right of access to the employer's property, at least if he
has reasonable alternative means to exercise his section 7 rights
whether they are direct or derivative.
The petition for review of the Decision and Order of
January 25, 1995, will be denied.
12