251 F.3d 995 (D.C. Cir. 2001)
ITT Industries, Inc., Petitionerv.National Labor Relations Board, RespondentInternational Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, Intervenor
No. 00-1296
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 23, 2001Decided June 5, 2001

On Petition for Review and Cross-Application for Enforcement of an Order of the  National Labor Relations Board
Richard B. Hankins argued the cause for petitioner.  With  him on the brief were Curtis L. Mack and Robert D. Harris.
Anna L. Francis, Attorney, National Labor Relations  Board, argued the cause for respondent.  With her on the  brief were John H. Ferguson, Associate General Counsel,  Aileen A. Armstrong, Deputy Associate General Counsel, and  Frederick L. Cornnell, Jr., Attorney.
Lynn K. Rhinehart argued the cause for intervenor International Union, United Automobile, Aerospace and Agricultural Implement Workers of America.  With her on the brief  were James B. Coppess and Blair Kay Simmons.  Merrill J.  Whitman entered an appearance.
Before:  Edwards, Chief Judge, Williams and Sentelle,  Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge:


1
Petitioner ITT Automotive manufactures automotive parts at ten different plants across the  Midwest, Arkansas, and New York.  The present action  involves the so-called "Northern Plants," three facilities located within a twenty-mile radius of one another in northeast  Michigan.  The Oscoda plant is the largest, with nearly 650  employees, while the Tawas and East Tawas plants each  employ roughly 180 workers.  During the relevant times at  issue in this case, the International Union, United Automobile, Aerospace and Agricultural Implement Workers of  America ("UAW" or "Union"), was seeking to organize the  employees at the Northern Plants.  ITT and the UAW stipulated that the three plant facilities, together, constituted a  single, appropriate bargaining unit for purpose of the representation election.


2
The unfair labor practice charges at issue arose in the  midst of the Union's organization campaign.  On two different  occasions, employees from the Oscoda plant attempted to  handbill in the East Tawas parking lot.  Both times, East  Tawas supervisors ordered them to leave under threat of  arrest for trespass.  The National Labor Relations Board  ("NLRB" or "Board") found that management's enforcement  of a no-access policy to union organizing by off-site employees constituted a violation of  8(a)(1) of the National Labor  Relations Act ("NRLA").


3
ITT argues that the Board overstepped its authority by  extending greater access rights to off-site employees than  those afforded nonemployee union organizers.  Specifically,  petitioner contends that the Supreme Court's access cases  make clear that "trespassers," whether nonemployee union  organizers or off-site employees, possess only limited derivative  7 access rights, i.e., that any such rights derive entirely  from on-site employees'  7 organizational right to receive  union-related information.


4
It is not clear that the Supreme Court's access cases  foreclose the Board's interpretation that  7 confers upon offsite employees some measure of free-standing, nonderivative  organizational access rights.  The Court's cases do make  clear, however, that the Board must take account of an offsite employee's trespasser status.  In the present case, the  Board utterly failed to bring that consideration to bear, first,  in its decision that  7 extended any nonderivative access  rights to off-site employees and, second, in its determination  that the scope of those rights be defined by the same balancing test used to assess the scope of on-site employee access  rights.  We therefore vacate the Board's decision and remand  for further consideration.


5
In a separate incident, East Tawas management reprimanded long time employee and union member Karen Richardson for harassing fellow workers with union solicitations  during worktime.  The Board found that management had  violated  8(a)(1) by discriminatorily applying the plant's  facially neutral no-solicitation policy to union-related activity. The Board's decision on this point is supported by substantial  evidence.

I. Background

6
In early 1998, the UAW, intervenor in this case, commenced an organizing campaign to unionize the nonsupervisory employees at the Northern Plants.  The Union subsequently filed an election petition in June, and the Board scheduled a representation election for July 30, 1998.  ITT  and the UAW stipulated to an election covering a unit consisting of nonsupervisory employees from all three plants.  With  less than a week to go before the election, the UAW withdrew  the petition.  By that point in time, the unfair labor practice  charges at the heart of this case had already been filed.


7
A. Restrictions on Oscoda Employee Handbilling in the East Tawas Parking Lot


8
On April 28, 1998 and again on May 14, 1998, employees  from the Oscoda plant entered the East Tawas parking lot in  order to distribute Union literature and solicit signatures for  the Union organizing petition.  Despite the fact that the  handbillers identified themselves as ITT employees from the  Oscoda plant, supervisors from the East Tawas plant requested them to leave the premises because they were trespassing  on private property.  The handbilling employees left without  incident.  Shortly thereafter the UAW filed unfair labor  practice charges with the Board, alleging that management's  application of the no-access policy to off-site employees violated  8(a)(1) of the NLRA.


9
At a hearing before an Administrative Law Judge ("ALJ"),  petitioner presented evidence that its no-access policy was  both neutral and justified.  East Tawas supervisor Jeff Minnick testified that management had instigated the zerotolerance, no-access policy in March 1998 following installation of a six-foot high cyclone fence around the parking lot. The new zero-tolerance policy limited parking lot access at all  times solely to East Tawas employees.  There was one exception:  relatives or friends of employees could enter the parking lot to pick up/drop off East Tawas employees as long as  they did not exit their vehicles.  Minnick cited a number of  precipitating events as grounds for the stricter policy, including several acts of automobile vandalism, youths driving  through the parking lot at night, nonemployees engaging  employees in fights after work, and one incident in which an  estranged husband of an East Tawas employee threatened to  bring a gun to the plant in search of his wife.


10
The ALJ was unpersuaded by ITT's evidence.  Quoting  Tri-County Medical Center, Inc., 222 N.L.R.B. 1089 (1976),  the ALJ noted that, " 'except where justified by business  reasons, a rule which denies off-duty employees entry to  parking lots, gates, and other outside nonworking areas will  be found invalid.' "  ITT Industries, Inc., 331 N.L.R.B. No. 7,  at 4 (May 10, 2000) ("Board Decision") (quoting Tri-County,  222 N.L.R.B. at 1089).  The ALJ was not impressed by the  fact that the handbillers were not only off-duty, but also offsite, employees, remarking that "employees of the employer  who work at one plant are still considered employees of the  employer if they handbill at another of the employer's  plants."  Board Decision, at 4 (citing S. Cal. Gas Co., 321  N.L.R.B. 551 (1996), and U.S. Postal Serv., 318 N.L.R.B. 466  (1995)).  Moreover, Oscoda and East Tawas employees belonged to the same representational unit.  Board Decision, at  4.


11
Having found that the Tri-County test applied, the ALJ  refused to consider ITT's evidence of reasonable alternative  means available to the Oscoda handbillers for communicating  with East Tawas employees.  Id.  As to the proffered justifications for applying the policy to off-site employees, the ALJ  found ITT's reasons to be "woefully inadequate," and belied  by the policy of permitting entry to friends and spouses to  pick up or drop off East Tawas employees.  Id.  The Board  affirmed the ALJ's decision, and ordered management at the  Northern Plants to grant parking-lot access to off-site employees for the purpose of distributing union materials.


12
B. Reprimanding Karen Richardson for Union Solicitation during Worktime


13
On May 7, 1998, East Tawas plant manager Rod Kaschner  and supervisor Jeff Binder called ten-year East Tawas employee and active union member Karen Richardson into Kaschner's office. Richardson memorialized the exchange in a  letter to Kaschner of same date:


14
Rod asked me to sit down.  He then said he has had a few people on the floor complaining to him about me talking about union related activities and union informa tion to them and they were offended.  He told me then that any more conversations about the union were to be kept outside, in the lunch room and on my off time.  He said I wasn't to be talking about the union on the floor any more to anyone.


15
Letter from Karen Richardson to Rod Kaschner (May 7,  1998) (emphasis added).  Kaschner responded with his own  letter the following day, in which he agreed with Richardson's  description.  He added only that "[t]he point again of the  whole meeting was if an individual is not interested in talking  with you about union activities, you should respect their  wishes and avoid such discussions."  Letter from Rod Kaschner to Karen Richardson (May 8, 1998).  The Union filed  an unfair labor practice charge with the Board alleging that  East Tawas management had discriminatorily applied the  plant's worktime no-solicitation policy to union solicitations in  violation of Section 8(a)(1) of the NLRA.


16
Relying on the above letters as well as testimony from  Richardson that she suffered no punishment and had resumed union solicitation on the floor after a mere seven days,  the ALJ found that "the Act was [not] violated because  management was essentially telling Richardson not to bother  her fellow employees ... and I see at most a de minimus or  insignificant infringement on Karen Richardson's Section 7  rights."  Board Decision, at 5.  The Board disagreed.


17
The Board acknowledged that ITT's no-solicitation rule was  valid on its face, inasmuch as it prohibited all solicitations of  any kind by any employee during worktime.  Id. at 1 (quoting  ITTA Northern Plants Fluid Handling Employee Handbook  31).  In practice, however, the Board found that East Tawas  management did not enforce the rule, letting employees and  managers talk about a variety of subjects and engage in a  number of solicitation activities at their work stations.  According to the Board, Kaschner's and Binder's May 7 admonition "not to engage in any discussion of the Union with any  employee on the production floor" constituted impermissible  disparate treatment.  Board Decision, at 2.  The Board  rejected the suggestion that the violation was somehow de minimus and ordered management to post notice that it  would cease disparate enforcement of the neutral nosolicitation policy.  Id.


18
This petition for review of both  8(a)(1) violations followed.

II. Analysis

19
Section 7 of the NLRA guarantees employees "the right to  self-organization, to form, join, or assist labor organizations." 29 U.S.C.  157 (1994).  Section 8(a)(1) makes it an "unfair  labor practice" for an employer "to interfere with, restrain, or  coerce employees in the exercise of the rights guaranteed in  [Section 7]."  29 U.S.C.  158(a)(1).

A. Parking Lot Access of Off-Site Employees

20
For nearly fifty years, it has been black-letter labor law  that the Board cannot order employers to grant nonemployee  union organizers access to company property absent a showing that on-site employees are otherwise inaccessible through  reasonable efforts.  NLRB v. Babcock & Wilcox Co., 351 U.S.  105, 112 (1956);  see also Lechmere, Inc. v. NLRB, 502 U.S.  527, 534 (1992);  Lucile Salter Packard Children's Hosp. at  Stanford v. NLRB, 97 F.3d 583, 587 (D.C. Cir. 1996).  It is  likewise well-established that the Board has the authority,  under Section 8(a)(1) of the NLRA, to prevent employers  from posting parking lots against off-duty employees unless  the employer presents valid business justifications for the  restriction.  See Tri-County, 222 N.L.R.B. at 1089 (setting  forth test);  see also NLRB v. S. Md. Hosp. Ctr., 916 F.2d  932, 939-40 (4th Cir. 1990) (relying on Tri-County test to  affirm Board's determination that no-access policy constituted  unfair labor practice because "limited neither to nonemployees nor to the interior of the hospital");  NLRB v. Ohio  Masonic Home, 892 F.2d 449, 453 (6th Cir. 1989) (affirming  Board's application of Tri-County test to invalidate no-access  policy applied to off-duty employees);  NLRB v. Pizza Crust  Co. of Pa., 862 F.2d 49, 52-55 (3d Cir. 1988) (same).  ITT  maintains that the Board overstepped its bounds by applying  the Tri-County test off-the-rack to off-site employees, who, it argues, possess no greater  7 access rights than are afforded nonemployee union organizers under the Babcock doctrine.


21
"Like other administrative agencies, the NLRB is entitled  to judicial deference when it interprets an ambiguous provision of a statute that it administers."  Lechmere, 502 U.S. at  536 (1992) (citing Chevron U.S.A. Inc. v. Natural Res. Def.  Council, Inc., 467 U.S. 837, 842-43 (1984)).  Section 7 does  not itself speak of access rights, much less the access rights  of off-site employees.  Such statutory silence would generally  counsel Chevron deference.  However, once courts have settled on a statute's clear meaning, " 'we adhere to that determination under the doctrine of stare decisis, and we judge an  agency's later interpretation of the statute against [the] prior  determination of the statute's meaning.' "  Lechmere, 502  U.S. at 536-37 (quoting Maislin Indus., U.S., Inc. v. Primary  Steel, Inc., 497 U.S. 116, 131 (1990)).  With this principle in  mind, we turn to prior judicial interpretation of  7 access  rights.


22
No court has decided the specific question we face here,  i.e., the scope of the Board's authority under   7 and 8(a)(1)  to prevent employers from prohibiting parking lot access to  off-site employees who are seeking to engage in organizational activities that would be lawful if pursued by on-site employees.  ITT asserts, however, that the Supreme Court's  7  access cases compel application of the Babcock test, rather  than the Tri-County test, in such situations.  Despite the fact  that Babcock, and more recently Lechmere, speak formally of  the differing access rights guaranteed "employees" versus  "nonemployees," ITT maintains that the two cases in actuality  establish a functional distinction between the access rights  guaranteed "invitees" versus "trespassers."  In other words,  ITT contends that, because "nonemployee" in the Babcock  formulation is merely a proxy for "trespasser," the Board's  application of the Tri-County test to trespassing off-site  employees runs afoul of Chevron step one.  We do not agree  that the Court's decisions are so clear.


23
Babcock was itself a response to the Board's then-policy of  assessing all parking-lot no-access rules under the same balancing test, regardless of whether the rule barred access  of employees or nonemployee union organizers.  Though the  Court acknowledged the deference normally owed the Board,  it nonetheless faulted the Board for "fail[ing] to make a  distinction between rules of law applicable to employees and  those applicable to nonemployees."  Babcock, 351 U.S. at 112  (emphasis added).  Calling the distinction "one of substance,"  the Court held:


24
No restriction may be placed on the employees' right to discuss self-organization among themselves, unless the employer can demonstrate that a restriction is necessary to maintain production or discipline.  But no such obligation is owed nonemployee organizers.  Their access to company property is governed by a different consideration.  The right of self-organization depends in some measure on the ability of employees to learn the advantages of self-organization from others.  Consequently, if the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them, the employer must allow the union to approach his employees on his property.


25
Id. at 113 (citations omitted).  In other words, nonemployees'  access rights are merely derivative of on-site employees'  organizational rights;  nonemployees enjoy no independent,  free-standing  7 right of access.  See Sears, Roebuck & Co.  v. San Diego County Dist. Council of Carpenters, 436 U.S.  180, 206 n.42 (1978).  Though the Court did not explicitly  contemplate the problem of the trespassing off-site employee,  it did note that "[o]rganization rights are granted to workers  by the same authority, the National Government, that preserves property rights.  Accommodation between the two  must be obtained with as little destruction of one as is  consistent with the maintenance of the other."  Babcock, 351  U.S. at 112.


26
The Court revisited Babcock twenty years later in Hudgens  v. NLRB, 424 U.S. 507 (1976).  Union member warehouse  employees of Butler Shoe Company had gone on strike.  In  addition to picketing the warehouse where they actually worked, the strikers targeted Butler's nine Atlanta-area retail  stores, including one inside the North DeKalb Shopping  Center.  The general manager of the shopping center threatened arrest for trespass, after which the union filed unfair  labor practice charges.  The Board agreed with the union,  and the Fifth Circuit affirmed because the mall's interior nopicketing policy violated the First Amendment.


27
The Court reversed on the First Amendment ground,  holding instead that "the rights and liabilities of the parties in  this case are dependent exclusively upon the National Labor  Relations Act."  Id. at 521.  Though the Court ordered  remand to allow the Board to decide the  7 question in the  first instance, it described the task facing the Board as  follows:


28
The Babcock & Wilcox opinion established the basic objective under the Act:  accommodation of  7 rights and private property rights "with as little destruction of one as is consistent with the maintenance of the other." The locus of that accommodation, however, may fall at differing points along the spectrum depending on the nature and strength of the respective  7 rights and private property rights asserted in any given context. In each generic situation, the primary responsibility for making this accommodation must rest with the Board in the first instance.


29
Id. at 522 (quoting Babcock, 351 U.S. at 112) (emphasis added  and citations omitted).


30
The Court equivocated on the proper scope of off-site  employee  7 access rights.  Describing the Board's task on  remand from Hudgens, the Court acknowledged that the  underlying facts differed from those in Babcock "in several  respects which may or may not be relevant in striking the  proper balance," including that the alleged trespass "was  carried on by Butler's employees (albeit not employees of its  shopping center store), not by outsiders."  Hudgens, 424 U.S.  at 522.  On the other hand, the Court hinted that access  rights might depend on one's status as a trespasser or invitee. Distinguishing Babcock from Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), an earlier case in which the Court  had affirmed a Board ruling that an employer may not  prohibit distribution of organizational literature by employees  in nonworking areas during nonwork time absent a showing  that the ban was necessary to maintain plant discipline or  production, the Court remarked:  "A wholly different balance  was struck when the organizational activity was carried on by  employees already rightfully on the employer's property,  since the employer's management interests rather than his  property interests were there involved."  Hudgens, 424 U.S.  at 521-22 n.10.


31
In Eastex, Inc. v. NLRB, 437 U.S. 556 (1978), the Court  again addressed the invitee/trespasser distinction.  The underlying facts in Eastex resembled those of Republic Aviation-the employer had prohibited employees from distributing a union newsletter in nonworking areas during nonwork  time.  The Board ruled that the prohibition constituted an  unfair labor practice, because the employer had failed to  demonstrate sufficiently special circumstances to justify the  ban.  The Fifth Circuit affirmed.  In upholding the Board's  decision, the Court explained the underlying concerns driving  the different outcomes in Babcock and Republic Aviation:


32
In Babcock & Wilcox, ... nonemployees sought to enter an employer's property to distribute union organizational literature.  The Board applied the rule of Republic Aviation in this situation, but the Court held that there is a distinction "of substance" between "rules of law applicable to employees and those applicable to nonemployees." The difference was that the nonemployees in Babcock & Wilcox sought to trespass on the employer's property, whereas the employees in Republic Aviation did not. Striking a balance between  7 organizational rights and an employer's right to keep strangers from entering on its property, the Court held that the employer in Babcock & Wilcox was entitled to prevent "nonemployee distribution of union literature [on its property] if reasonable efforts by the union through other available chan nels of communication will enable it to reach the employees with its message."


33
Eastex, 437 U.S. at 571 (quoting Babcock, 351 U.S. at 112,  113) (emphasis added and citations omitted).


34
Following Eastex and seizing on the Court's balancing  language from Hudgens, the Board in 1988 reformulated its  approach to no-access policies, once again adopting a single  balancing test for assessing the validity of no-access policies  generally, whether enforced against employees or nonemployees.  See Jean Country, 291 N.L.R.B. 11, 14 (1988) ("[I]n all  access cases our essential concern will be the degree of  impairment of the Section 7 right if access should be denied,  as it balances against the degree of impairment of the private  property right if access should be granted.  We view the  consideration of the availability of reasonably effective alternative means as especially significant in this balancing process.").  When the Board applied this test to strike down an  employer's application of its parking-lot no-access policy to  nonemployee union organizers, the Court in Lechmere intervened.


35
Noting that "[b]y its plain terms, ... the NLRA confers  rights only on employees, not on unions or their nonemployee  organizers," Lechmere, 502 U.S. at 532, the Court recast  Babcock in Chevron terms:


36
In Babcock, ... we held that the Act drew a distinction "of substance" between the union activities of employees and nonemployees.  In cases involving employee activities, we noted with approval, the Board "balanced the conflicting interests of employees to receive information on self-organization on the company's property from fellow employees during nonworking time, with the employer's right to control the use of his property."  In cases involving nonemployee activities (like those at issue in Babcock itself), however, the Board was not permitted to engage in that same balancing (and we reversed the Board for having done so).  By reversing the Board's interpretation of the statute for failing to distinguish between the organizing activities of employees and nonemployees, we were saying, in Chevron terms, that  7  speaks to the issue of nonemployee access to an employer's property.  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."


37
Id. at 537 (quoting Babcock, 351 U.S. at 109-10, 112, 113)  (citations omitted).  The Court thus reaffirmed Babcock's  central thesis that  7 extends only derivative access rights to  nonemployee union organizers.  The union itself, untethered  to a threshold claim that  7 employee organizational rights  had been infringed, could not claim protection.


38
Lechmere and the Court's cases leading up to it simply do  not answer the question before us.  The Court never has  professed to define the scope of the term "employee" in  Babcock, Hudgens, Republic Aviation, Eastex, or Lechmere. And these cases certainly do not stand for the proposition  that all trespassers, whether they be nonemployee union  organizers or off-site employees, possess only derivative  7  access rights.  Because the Court's cases do not bespeak a  clear answer, and because the statute is silent on the point,  we must defer to the Board's interpretation if reasonable.


39
Before assessing the reasonableness of the Board's interpretation, we pause to consider the significance of the Eleventh Circuit's decision in Southern Services, Inc. v. NLRB,  954 F.2d 700 (11th Cir. 1992).  There, Coca-Cola had enforced a no-access policy against an employee of a janitorial  subcontractor who serviced Coca-Cola's secured industrial  complex in Atlanta.  The complex was "the only common  workplace of the approximately 165 [subcontractor] employees who provide janitorial services to Coca-Cola under subcontract."  Id. at 701.  The Board ruled against Coca-Cola,  despite the fact that the subcontractor's employees were  technically "nonemployees" vis-A-vis Coca-Cola.  The Eleventh Circuit affirmed, reasoning that:


40
Babcock & Wilcox suggests two different routes for analyzing employer rights, which now diverge under this  case's facts.  Babcock & Wilcox implied that employers may restrict distribution by nonemployee organizers for the reason that those organizers are trespassers.  Yet the holding addressed the section 7 rights of nonemployees-a category of persons who are not necessarily trespassers on the employer's premises.  But dicta in the Supreme Court's post-Babcock & Wilcox cases indicate that it is the organizer's status as a trespasser or stranger to the employee's property, rather than the nonemployee status, that invokes the employer's property right to restrict premises distribution by the organizer.


41
Id. at 703 (citations omitted).


42
Of course that decision as the opinion of another circuit is  not binding here.  Moreover, Southern Services issued only  one month after Lechmere and contains no reference to the  Supreme Court's decision.  The Eleventh Circuit's opinion  thus has limited persuasive value-it does not account for  Lechmere's express reaffirmation of the employee/nonemployee distinction, particularly its reliance on statutory mention of  the term "employee."  In any event, nothing in Southern  Services is dispositive of the issue before us in this case.


43
When it is unclear under established law whether a category of workers enjoys free-standing, nonderivative access  rights, then a court is obliged to defer to reasonable judgments of the Board in its resolution of cases that have not as  yet been resolved by the Supreme Court.  We have no doubt  that the Board could attempt a justification within the bounds  of Babcock, Hudgens, and Lechmere for why  7 guarantees  on-site subcontractor employees-like the  I janitors at Coca  Cola-nonderivative access rights similar to those enjoyed by  on-site employees of the firm owning the site.  Obviously, this  is not a question before us.  We make the point only to say  that the Board, in the first instance under Chevron step two,  must be allowed to define the limits of the NLRA in assessing  the legality of no-access, no-solicitation rules not yet considered by the Supreme Court.


44
Although the Court's access cases do not foreclose the  possibility that off-site employees might enjoy some measure of free-standing, nonderivative access rights, they do make  clear that the reasonableness of such an interpretation depends in large part on the Board's considered justifications  for extending greater access rights to trespassing employees  than trespassing nonemployee union organizers.  "In determining whether an agency's interpretation represents a reasonable accommodation of conflicting statutory purposes, a  reviewing court must determine both whether the interpretation is arguably consistent with the underlying statutory  scheme in a substantive sense and whether 'the agency  considered the matter in a detailed and reasoned fashion.' " Rettig v. Pension Benefit Guar. Corp., 744 F.2d 133, 151  (D.C. Cir. 1984) (quoting Chevron, 467 U.S. at 865).  With  this principle in mind, we simply cannot assess the reasonableness of the Board's decision to apply the Tri-County test  to off-site employees in the present case.


45
First, the Board failed even to acknowledge that the question of off-site employee access rights was an open one, i.e.,  that, in Chevron terms,  7 and the Court's cases are silent  on the issue.  Rather, the Board decided sub silentio that  7  guarantees all off-site employees, whether members of the  same bargaining unit or not, some measure of free-standing,  nonderivative access rights.  See Board Decision, at 4  ("[E]mployees of the employer who work at one plant are still  considered employees of the employer if they handbill at  another of the employer's plants.").  Indeed, by applying the  Tri-County balancing test, the Board decided without analysis that trespassing off-site employees possess access rights  equivalent to those enjoyed by on-site employee invitees. Because it is by no means obvious that  7 extends nonderivative access rights to off-site employees, particularly given  the considerations set forth in the Court's access cases, the  Board was obliged to engage in considered analysis and  explain its chosen interpretation.


46
At oral argument, Government counsel insisted that the  Board had already provided such an explanation in its prior  off-site employee access cases and should not be required to  repeat its justifications here.  See Eagle-Picher Industries,  Inc., 331 N.L.R.B. No. 14 (May 19, 2000);  S. Cal. Gas Co., 321 N.L.R.B. 551 (1996);  U.S. Postal Serv., 318 N.L.R.B. 466  (1995).  The Government is certainly correct that the Board  is not obligated to justify its interpretation anew with every  application if it has done so adequately in a previous decision. None of the Board's previous cases, however, take any account of the Court's different access decisions or the trespass  considerations articulated therein.  Indeed, the most extensive treatment of the interpretive question can be found in  United States Postal Service, 318 N.L.R.B. at 467.  Rejecting  arguments that the Babcock test rather than the Tri-County  test should apply to off-site employees, the Board stated only:


47
No case has been cited which would warrant the distinction which Respondent proposes.  In the instant case Respondent's employees enjoy the same benefits and working conditions regardless of the facility at which they work.  For example, vacation benefits accrue in the same manner and rate regardless of an employee's assigned facility.  Years of employment are counted toward an employee's pension from the day the employee is hired to the day he or she retires, regardless of which facility he or she is assigned to.  In addition, an employee who is involuntarily transferred from one postal facility to another maintains his or her seniority regardless of the change of facility.  In Nashville Plastic Products, supra, the Board recognized that "the rule enunciated in Lechmere does not apply to employees."  No distinction was made as to whether an employee worked at any particular facility.  In addition, in Tri-County, supra, the Board prohibited a rule which denied off-duty employees entry to parking lots, gates, and other outside nonworking areas.  Again, no distinction was made as to whether the off-duty employee worked at any particular facility. Accordingly, I believe that the rule enunciated in TriCounty Medical Center, supra, is controlling in the instant proceeding.


48
Id.  Noticeably absent from this discussion is any mention of  the employer's property rights or the different interpretive  considerations presented by trespassing employees.  There is certainly no consideration of the degree to which extending  nonderivative access rights to off-site employees might intrude upon state trespass laws.  See Sears, Roebuck & Co.,  436 U.S. at 205 (holding that NLRA, as interpreted in Babcock, did not preempt state trespass laws in part because  "permitting state courts to evaluate the merits of an argument that certain trespassory activity is protected does not  create an unacceptable risk of interference with conduct  which the Board, and a court reviewing the Board's decision,  would find protected.  For while there are unquestionably  examples of trespassory union activity in which the question  whether it is protected is fairly debatable, experience under  the Act teaches that such situations are rare and that a  trespass is far more likely to be unprotected than protected"). Moreover, many of the organizational considerations cited by  the Board are situation-specific and would not justify the  general rule adopted here.  We therefore vacate the Board's  decision and remand for the Board to consider and craft its  interpretation in light of these concerns.


49
Second, even were we here to find reasonable the Board's  decision to read into  7 some measure of free-standing,  nonderivative access rights for off-site employees, the Board  nevertheless failed to explain why the scope of such rights  should be defined by the same Tri-County balancing test  used to delineate the scope of on-site employee access rights. Lechmere makes clear that, even as to on-site employees, the  Board must balance the conflicting interests of employees to  receive information on self-organization on the company's  property from fellow employees during nonwork time with  the employer's right to control the use of his property.  See  Lechmere, 502 U.S. at 534.


50
It is obvious that the interests of employees located on a  single employer site do not always coincide with the collective  interests of employees located on several different sites. Indeed, this may be so even when employees on different  sites are part of a single representational unit.  The "balance" of conflicting interests may change dramatically when  "employees" are widely dispersed at different employer locations, both because the employees' interests and working arrangements may be dissimilar and also because the employer's right to control the disputed premises likely implicates  security, traffic control, personnel, and like issues that do not  arise when only on-site employee access is involved.  If, on  remand, the Board determines that  7 indeed extends nonderivative access rights to off-site employees, it must then  adopt a balancing test that takes proper account of an employer's predictably heightened property concerns.


51
B. Disparate Application of No-Solicitation Rule


52
We need not pause long over the Board's determination  that East Tawas management committed an unfair labor  practice in reprimanding Karen Richardson.  "Even if the  court might have reached a different conclusion had the court  considered the issue de novo, the court will uphold the  Board's decision if it is supported by substantial evidence in  the record."  Frazier Indus. Co. v. NLRB, 213 F.3d 750, 756  (D.C. Cir. 2000).


53
Petitioner argues that, in reprimanding Richardson, management was simply applying a facially neutral no-solicitation  policy.  That is beside the point.  Though facially neutral  restrictions on worktime solicitations in work areas are presumptively valid, an employer commits an unfair labor practice when it applies the rule in non-neutral fashion to union  activities.  See Restaurant Corp. of Am. v. NLRB, 827 F.2d  799, 804-05 (D.C. Cir. 1987).  The Board found that East  Tawas management had not traditionally enforced the rule,  allowing "employees and managers to talk about various  subjects while at their work stations as long as it did not  interfere with production and to engage in a variety of  solicitation activities, usually for some charitable cause." Board Decision, at 1.  Substantial evidence supports this  finding.  See Transcript of ALJ Hearing ("Tr.") at 115-18  (testimony of Karen Richardson) (testifying as to various  charitable solicitation drives conducted during worktime);  Tr.  at 100-02 (testimony of Karen Richardson) (testifying that  supervisors often talk about nonwork-related issues with employees on the floor).


54
Conceding that the evidence might support a finding that  East Tawas management generally tolerates worktime solicitations, petitioner argues that management has never maintained a policy of allowing harassing solicitations, such as  that attributed to Richardson.  We agree that substantial  evidence would not support a finding that management generally tolerates solicitations in the face of harassment complaints.  Indeed, Richardson herself testified that, despite  often talking about the Union on the floor with fellow employees, this was the only time she had ever been reprimanded  for doing so.  See Tr. at 123-24.


55
Petitioner's argument nonetheless misses the crucial point. The Board took issue with the fact that "Kaschner and  Binder responded [to the complaints] by warning Richardson  on May 7 not to engage in any discussion of the Union with  any employee on the production floor."  Board Decision, at 2. In other words, the warning was both impermissibly overbroad, in that it required her to cease Union discussion with  other employees altogether rather than simply those expressing discomfort, and impermissibly underbroad, in that it  required her to cease Union-related discussions only.  Richardson's uncontroverted letter, the correctness of which Kaschner conceded in his response of the following day, constituted substantial evidence in support of the Board's finding of  discriminatory overand underbreadth.  See Letter from  Karen Richardson to Rod Kaschner.

Conclusion

56
We deny ITT's petition for review of the  8(a)(1) violation  pertaining to the disparate application of the disputed nosolicitation rule.  However, we vacate the Board's determination that ITT committed an unfair labor practice by applying  its no-access policy to off-site handbilling employees and  remand to the Board for further proceedings consistent with  this opinion.


57
So ordered.

