                                                                                                                           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Precedential or Non-Precedential: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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"Metropolitan v NLRB" (1995). 1995 Decisions. Paper 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



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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 NLRB 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 NLRB 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.




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