      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206            2       First Healthcare Corp. v. NLRB         Nos. 01-2478/2673
   ELECTRONIC CITATION: 2003 FED App. 0337P (6th Cir.)
               File Name: 03a0337p.06
                                                                 Nos. 31-CA-20973; 31-CA-21091; 31-CA-21551.
UNITED STATES COURT OF APPEALS                                               Argued: April 29, 2003
             FOR THE SIXTH CIRCUIT                                  Decided and Filed: September 19, 2003
               _________________
                                                         Before: CLAY and GIBBONS, Circuit Judges; DUGGAN,
FIRST HEALTHCARE                 X                                         District Judge.*
CORPORATION , d/b/a               -
                                  -                                            _________________
HILLHAVEN BAKERSFIELD ,
                                  -  Nos. 01-2478/2673
d/b/a HILLHAVEN HIGHLAND          -                                                 COUNSEL
HOUSE , d/b/a HEALTHCARE           >
                                  ,                      ARGUED: John V. Nordlund, Fairfax, California, for
CORPORATION IN THE STATE          -
OF CALIFORNIA ,
                                                         Petitioner. Jill Griffin, NATIONAL LABOR RELATIONS
                                  -                      BOARD, OFFICE OF THE GENERAL COUNSEL,
                     Petitioner/ -                       Washington, D.C., for Respondent. Andrew L. Strom, SEIU
           Cross-Respondent, -                           LOCAL 32BJ, LEGAL DEPARTMENT, New York, New
                                  -                      York, for Intervenor. ON BRIEF: John V. Nordlund,
                                  -                      Fairfax, California, Leslie M. Mitchell, LAW OFFICE OF
           v.
                                  -                      LESLIE M. MITCHELL, Sacramento, California, for
                                  -                      Petitioner. Jill Griffin, Aileen A. Armstrong, Frederick C.
NATIONAL LABOR RELATIONS -                               Havard, NATIONAL LABOR RELATIONS BOARD,
BOARD ,                           -                      OFFICE OF THE GENERAL COUNSEL, Washington, D.C.,
                   Respondent/ -                         for Respondent. Andrew L. Strom, SEIU LOCAL 32BJ,
              Cross-Petitioner, -                        LEGAL DEPARTMENT, New York, New York, Craig
                                  -                      Becker, Chicago, Illlinois, for Intervenor.
                                  -
SERVICE EMPLOYEES                 -                         CLAY, J., delivered the opinion of the court, in which
INTERNATIONAL UNION,              -                      DUGGAN, D. J., joined. GIBBONS, J. (pp. 39-46), delivered
LOCAL 399,                        -                      a separate dissenting opinion.
                    Intervenor. -
                                  -
                                 N
      On Petition for Review and Cross-Application
               for Enforcement of an Order
        from the National Labor Relations Board.             *
                                                              The Honorable Patrick J. Duggan, United States District Judge for
                                                         the Eastern District of Michigan, sitting by designation.

                           1
Nos. 01-2478/2673           First Healthcare Corp. v. NLRB                3    4    First Healthcare Corp. v. NLRB        Nos. 01-2478/2673

                        _________________                                      September 22, 1995. (NLRB Cases 31-/CA-20973, 31CA-
                                                                               21091, and 31CA-21551.)           The Board subsequently
                            OPINION                                            consolidated the cases.         The parties submitted the
                        _________________                                      consolidated case directly to the Board for a decision based
                                                                               on a stipulation of facts on December 4, 1995. Thereafter, on
   CLAY, Circuit Judge. In Case No. 01-2478, Petitioner,                       September 30, 1996, the Board ruled that it had improvidently
First Healthcare Corporation, d/b/a Healthcare Corporation in                  accepted the stipulation, and remanded the case for a trial to
the State of California, d/b/a Hillhaven Highland House, d/b/a                 determine the object of the trespassory conduct at issue.
Hillhaven Bakersfield, petitions this Court for review of the
September 30, 2001, decision and order from Respondent, the                       On June 8-11, 1998, a trial was held before Administrative
National Labor Relations Board (“NLRB” or “the Board”),                        Law Judge (“ALJ”) Steven Charno, and on July 21, 1998, the
finding that Petitioner violated section 8(a)(1) of the National               ALJ issued a decision from the bench finding that Petitioner
Labor Relations Act (“the Act”), 29 U.S.C. § 141 et seq., by                   had violated section 8(a)(1) of the Act. All parties filed
denying access to its property to persons who were employed                    timely exceptions to the ALJ’s decision with the Board. On
at another facility owned by Petitioner, and by maintaining a                  September 30, 2001, the Board issued its decision which is
policy of denying off-duty employees access to the outside                     now before the Court on petition for review by Petitioner and
non-working areas of the facilities where they were                            on application for enforcement by the NLRB. See First
employed. In Case No. 01-2673, the Board seeks this Court’s                    Healthcare Corp., 336 N.L.R.B. No. 62, 168 L.R.R.M.
enforcement of the September 30, 2001, decision and order.                     (BNA) 1368, 2001 WL 1685280 (Sept. 30, 2001). Pursuant
                                                                               to this Court’s March 10, 2003, order, the Union’s motion to
   Because there is substantial evidence to support the Board’s                participate in oral argument has been granted.
findings of fact, and because there are no errors of law1 in the
decision, we DENY Petitioner’s request for review of the                                                   Facts
Board’s September 30, 2001, decision and order in Case No.
01-2478, and GRANT the Board’s application for                                   Petitioner operates nursing homes at various locations in
enforcement of the order in Case No. 01-2673.                                  California. The Union represents employees at some of
                                                                               Petitioner’s nursing homes, while some of Petitioner’s homes
                         BACKGROUND                                            operate as nonunion facilities. Since January of 1990,
                        Procedural History                                     successive employee handbooks for Petitioner’s nonunion
                                                                               service staff in California have included a solicitation and
  This case originated with unfair labor practice charges filed                distribution rule with two provisions. The first provision
against Petitioner by the Service Employees International                      states: “When you are off-duty, don’t return to the facility
Union and two of its affiliates, Local 399 and Local 22                        unless you are picking up your paycheck or are making an
(collectively “the Union”), between January 3 and                              authorized visit.” (J.A. at 848.) An “authorized visit” was
                                                                               defined by Petitioner as a return to the facility for “a
                                                                               work/job-related reason.” (J.A. at 686.) The second
    1
      W e emphasize that we review the legal basis upon which the Board        provision states: “[N]on-employees are not allowed to solicit
applied its factual findings de novo. Thus, the dissent’s contention that      or distribute material while on facility property.” (J.A. at 679
we failed to apply a de novo standa rd to the Board ’s legal co nclusions is   n.5.) Petitioner has interpreted this latter provision to apply
simply wrong.
Nos. 01-2478/2673      First Healthcare Corp. v. NLRB         5    6     First Healthcare Corp. v. NLRB        Nos. 01-2478/2673

to employees who solicit and distribute at facilities other than   maintenance supervisor at Highland House, was observed
the facility to which the employees are assigned to work           shutting the facility’s back gate which required that the gate
(a/k/a “offsite employees”).                                       thereafter be manually opened to allow cars to enter or exit
                                                                   the facility through that gate. The main entrance and exit to
  On September 17, 1994, Petitioner’s employee Alfredo             the facility were at the front of the building.
Chavez met with three non-employee union organizers at
Petitioner’s Highland House facility just prior to the 3:00 p.m.      At approximately 2:00 p.m. on July 12, 1995, Jenny
shift change. Chavez was employed by Petitioner as a janitor       Davenport, an employee of Petitioner’s Alta Vista facility,
at Petitioner’s Alta Vista facility. Chavez walked to the          along with union organizers Gary Guthman and Karla
parking lot outside the employees’ entrance at the back of the     Zombro, spoke with employees at Petitioner’s Bakersfield
Highland House facility with flyers that were printed in both      facility (also referred to as the California Care Center facility)
Spanish and English. The flyers, which were captioned              about joining the Union. Davenport was wearing her badge
“Let’s Get Together,” pointed out the benefits of union            issued by Petitioner which bore Davenport’s name and
membership, solicited the recipients to join the Union, and        Petitioner’s logo. Davenport took some of the union literature
contained a postage prepaid card which could be returned for       and went to an outdoor break area next to the parking lot on
additional “information about joining the Service Employees        Petitioner’s premises, and began talking with a Bakersfield
International Union.” (J.A. at 687, 818-19.) Chavez                employee about the benefits of unionization. Davenport also
identified himself as one of Petitioner’s employees, and spoke     carried leaflets that described the value of unionization and
with approximately four employees about the value of the           urged employees to make inquiries on “‘how to get involved
Union, before he was joined by union organizer Blanca              in fighting for union rights for your facility.’” (J.A. at 813.)
Correa.
                                                                     Shortly thereafter, Maria Favereaux, business manager at
  Correa and Chavez had spoken to four more employees              Petitioner’s Bakersfield facility, came out of the facility and
when they were approached by Highland House                        approached Davenport. Davenport informed Favereaux that
administrator, Carol Bowman-Jones. Both Correa and                 she was employed by Petitioner and asserted a legal right as
Highland House employee Bill Harvey identified Chavez as           one of Petitioner’s employees to be on the premises.
one of Petitioner’s employees. Nonetheless, Bowman-Jones           Favereaux went inside the facility and telephoned Petitioner’s
ordered Chavez to leave the premises, threatening to call the      legal counsel. Favereaux then emerged outside with
police if he refused to leave. Chavez complied with                environmental services manager Tim Haub, and Favereaux
Bowman-Jones’ order to leave the premises.                         instructed Davenport to leave the Bakersfield premises. As
                                                                   Haub and Favereaux escorted Davenport off of the premises,
  About four months later, at approximately January 26,            they were approached by Guthman, who questioned the
1995, a group of non-employee union organizers and offsite         decision to deny Davenport access to the outside non-working
employees assembled at the Highland House facility for the         areas. Haub responded that employees could not distribute
purpose of handing out union literature which 1) disputed          materials on Petitioner’s property “unless they had the
Petitioner’s prior claim that the union made no promises “it       approval of Management.” (J.A. at 60, 687.)
could not keep,” and 2) invited Highland House employees to
join the Union. (J.A. at 687.) It is uncontroverted that            Based on the foregoing facts, the Board agreed with the
approximately forty-five minutes later, Jack Quiroz, the           ALJ and found that Petitioner had violated section 8(a)(1) of
Nos. 01-2478/2673      First Healthcare Corp. v. NLRB         7    8     First Healthcare Corp. v. NLRB        Nos. 01-2478/2673

the Act by enforcing against off-site employees its solicitation   657, 600 (6th Cir. 1983)). “When there is conflict in the
and distribution policy prohibiting non-employees from any         testimony, ‘it is the Board’s function to resolve questions of
solicitation and distribution at Petitioner’s facilities. The      fact and credibility,’ and thus this court ordinarily will not
Board also affirmed the ALJ’s finding that Petitioner had          disturb credibility evaluations by an ALJ who observed the
violated section 8(a)(1) of the Act by maintaining, at least       witnesses’ demeanor.” Id. (quoting NLRB v. Baja’s Place,
until July 12, 1995, a rule that prohibited off-duty employees     733 F.2d 416, 421 (6th Cir. 1984)).
from returning to the non-work areas of the facilities where
they worked to engage in organizational activity unless              In addition, “[t]he Board’s application of the law to
“authorized” by Petitioner.                                        particular facts is also reviewed under the substantial
                                                                   evidence standard . . . .” Id. However, “[i]f the Board errs in
   The Board ordered Petitioner to cease and desist from           determining the proper legal standard, the appellate court may
engaging in these unfair labor practices, particularly with        refuse enforcement on the grounds that the order has ‘no
respect to Petitioner’s enforcing its no-solicitation rule in a    reasonable basis in law.’” Id. (quoting Ford Motor Co. v.
manner so as to deny its off-site employees access to parking      NLRB, 441 U.S. 488, 497 (1979)).
lots and other non-work areas for the purpose of engaging in
union solicitation and/or distribution. The Board also             II. SUBSTANTIAL EVIDENCE SUPPORTS THE
directed Petitioner to rescind the rule contained in its               BOARD’S FINDING THAT PETITIONER
employee handbook stating that employees who are off-duty              VIOLATED SECTION 8(a)(1) OF THE ACT BY
may not “return to the facility unless [they] are picking up           PROHIBITING ITS EMPLOYEES FROM
[their] paycheck or making an authorized visit” and to notify          ENGAGING IN ORGANIZATIONAL
employees of this recision. (J.A. at 685.) Finally, the Board          S O L I C I T AT I O N A N D D I S T R I B U T I O N
ordered Petitioner to post a remedial notice at all of its             ACTIVITIES IN OUTSIDE NONWORKING
nonunion facilities in California.                                     AREAS AT FACILITIES OTHER THAN THE
                                                                       FACILITY WHERE THEY WORK
                       DISCUSSION
                                                                       A. Legal Standards Regarding Solicitation and/or
I. STANDARD OF REVIEW                                                     Distribution Rights Under Section 7 of the Act
  Under the Act, the scope of this Court’s review of the             Section 7 of the Act guarantees employees “the right to
Board’s findings is limited. That is, “the findings of the         self-organization, to form, join, or assist labor organizations.”
Board with respect to questions of fact if supported by            29 U.S.C. § 157. Section 8(a)(1) makes it an “unfair labor
substantial evidence on the record considered as a whole shall     practice” for any employer “to interfere with, restrain, or
be conclusive.” 29 U.S.C. § 160(e). “Evidence is considered        coerce employees in the exercise of the rights guaranteed in
substantial if it is adequate, in a reasonable mind, to uphold     [Section 7].” 29 U.S.C. § 158(a)(1).
the decision.” Turnbull Cone Baking Co. v. NLRB, 778 F.2d
292, 295 (6th Cir. 1985) (per curiam). Although this Court           The organizational solicitation and/or distribution rights
“should consider the evidence contrary to the Board’s              under Section 7 of off-duty offsite employees—that is,
conclusions,” it “may not conduct a de novo review of the          employees of a single company who engage in organizational
record.” Id. (citing Union Carbide Corp. v. NLRB, 714 F.2d         activity at a company facility other than that to which they
Nos. 01-2478/2673      First Healthcare Corp. v. NLRB        9    10   First Healthcare Corp. v. NLRB        Nos. 01-2478/2673

have been assigned to work—is an issue upon which the             under Section 8(a)(1) to prevent an employer from denying
NLRB has spoken but not one upon which the Supreme Court          visiting “off-site” employees access to outside non-working
has spoken. In addition, while the District of Columbia           areas of the employer’s property for the purpose of exercising
Circuit not long ago had the issue of what, if any, Section 7     Section 7 rights. The Board followed Southern California
rights off-site employees enjoy, the D.C. Circuit declined to     Gas Co. and Postal Service in deciding ITT Industries, Inc.,
speak affirmatively on the matter, but instead remanded the       331 N.L.R.B. 7 (2000), thus preventing the employer in that
matter back to the Board for further determination. In other      case from denying off-duty offsite employees who were
words, an issue of first impression is before this Court upon     seeking to exercise their organizational rights access to
which there is little said directly on point in the relevant      outside non-working areas.
jurisprudence. As a result, we shall paint the legal landscape
surrounding the matter with a broad brush so as to allow for        The employer in ITT Industries, Inc., ITT Automotive
proper consideration of the issue.                                (“ITT”), petitioned the District of Columbia Court of Appeals
                                                                  for review, and the Board cross-petitioned for enforcement of
  To begin, it has been black-letter law for nearly fifty years   the Board’s decision. See ITT Indus., Inc. v. NLRB, 251 F.3d
that the Board cannot order employers to grant non-employee       995, 996 (D.C. Cir. 2001). The D.C. Circuit denied ITT’s
union organizers access to company property absent a              petition for review of an issue not relevant here, but vacated
showing that onsite employees are otherwise inaccessible          the Board’s determination that ITT committed an unfair labor
through reasonable efforts. NLRB v. Babock & Wilcox Co.,          practice by applying its no-access policy to offsite employees
351 U.S. 105, 112 (1956); see also Lechmere, Inc. v. NLRB,        seeking to distribute pro-union handbills and solicit signatures
502 U.S. 527, 534 (1992).                                         for the union organizing petition, and remanded the matter to
                                                                  the Board for further proceedings consistent with the court’s
  In Tri-County Medical Center, Inc. v. District 1199, 222        opinion. Id. at 1006-007. In doing so, the court began by
N.L.R.B. 1089 (1976), the Board considered the issue of           noting that under Chevron U.S.A. Inc. v. Natural Resources
whether it could prevent employers from denying off-duty          Defense Council, Inc., 467 U.S. 837, 842-43 (1984), the
employees access to outside non-working areas of the facility     NLRB is entitled to judicial deference when it interprets an
at which they were employed for purposes of exercising            ambiguous provision of a statute that it administers, and that
Section 7 rights. The Board found that it had authority under     because Section 7 does not itself speak of access rights, much
Section 8(a)(1) of the Act to prevent employers from denying      less access rights of offsite employees, such statutory silence
off-duty onsite employees access to parking lots, gates, and      would counsel Chevron deference unless courts have settled
other outside non-working areas for purposes of exercising        on the statute’s clear meaning. ITT Indus., Inc., 251 F.3d at
Section 7 rights, unless the employer had “justified business     1000 (citing Lechmere, 502 U.S. at 536-37).
reasons” for doing so. Id. This Court affirmed the Board’s
application of the Tri-County test to invalidate a no-access         With this principle in mind, the D.C. Circuit then surveyed
policy applied to off-duty onsite employees in NLRB v. Ohio       the landscape of relevant Supreme Court decisions so as to
Masonic Home, 892 F.2d 449, 453 (6th Cir. 1989).                  determine whether Chevron deference was in order—i.e.,
                                                                  whether the judicial pronouncements have settled on Section
  In Southern California Gas Co., 321 N.L.R.B. 551 (1996),        7's meaning. Id. The court began by examining the Court’s
and Postal Service, 318 N.L.R.B. 466 (1995), the Board            decision in Babcock, 351 U.S. at 112, wherein it was held that
applied the rule of Tri-County in finding that it had authority   the access rights of non-employees are derivative of the
Nos. 01-2478/2673      First Healthcare Corp. v. NLRB        11   12   First Healthcare Corp. v. NLRB       Nos. 01-2478/2673

access rights of onsite employees; that is, non-employees           law applicable to employees and those applicable to
enjoy no independent, free-standing Section 7 right of access.      nonemployees.”        The difference was that the
251 F.3d at 1000.                                                   nonemployees in Babcock & Wilcox sought to trespass
                                                                    on the employer’s property, whereas the employees in
  The D.C. Circuit then looked to the Court’s decision in           Republic Aviation did not. Striking a balance between
Hudgens v. NLRB, 424 U.S. 507 (1976), rendered some                 § 7 organizational rights and an employer’s right to keep
twenty years after Babcock was handed down. See 251 F.3d            strangers from entering on its property, the Court held
at 1001. In Hudgens the Court ultimately remanded the               that the employer in Babcock & Wilcox was entitled to
matter back to the Board to decide the Section 7 question in        prevent “nonemployee distribution of union literature [on
the first instance; however, in doing so, the Court                 its property] if reasonable efforts by the union through
acknowledged that the facts in Hudgens differed from those          other available channels of communication will enable it
of Babcock because the alleged trespass onto the employer’s         to reach the employees with its message.”
property “was carried on by [the employer’s] employees
(albeit not employees of its shopping center store), not by       Eastex, 437 U.S. at 571 (quoting Babcock, 351 U.S. at 112-
outsiders.” 424 U.S. at 522. The Hudgens Court also               13) (citations omitted).
distinguished Babcock from Republic Aviation Corp. v.
NLRB, 324 U.S. 793 (1945), an earlier decision wherein the           Finally, the D.C. Circuit recognized that in Lechmere, Inc.
Court affirmed a Board ruling that an employer may not            v. NLRB, 502 U.S. 527, 532 (1992), the Supreme Court
prohibit distribution of organizational materials by employees    sharpened the distinction between employee/non-employee
in non-working areas during non-work hours absent a               Section 7 rights. 251 F.3d at 1002. In Lechmere, the Court
showing that the ban was necessary to maintain plant              stated that “by its plain terms, . . . the NLRA confers rights
discipline or production. Hudgens, 424 U.S. at 521-22 n.10.       only on employees, not on unions or their nonemployee
The Hudgens Court noted that “[a] wholly different balance        organizers . . . .” Lechmere, 502 U.S. at 532 (emphasis is
was struck when the organizational activity was carried on by     original).
employees already rightfully on the employer’s property,
since the employer’s management interests rather than his           With this background into the controlling jurisprudence in
property interests were there involved.” Id.                      mind, the D.C. Circuit found that neither Lechmere nor “the
                                                                  Court’s cases leading up to it” answered the question of
  Next, the D.C. Circuit recognized that in Eastex, Inc. v.       whether off-duty offsite employees enjoyed nonderivative
NLRB, 437 U.S. 556 (1978), the Court explained the                Section 7 organizational rights, or whether the offsite
underlying concerns driving the different outcomes in             employees’ organizational rights were merely derivative. 251
Babcock and Republic Aviation. ITT Indus., Inc., 251 F.3d at      F.3d at 1003. As a result, the D.C. Circuit concluded that
1001. Specifically, the Eastex Court had observed that            “[b]ecause the [Supreme] Court’s cases do not bespeak a clear
                                                                  answer, and because the statute is silent on the point, we must
  [i]n Babcock & Wilcox, . . . nonemployees sought to             defer to the Board’s interpretation if reasonable.” Id.
  enter an employer’s property to distribute union                (emphasis in original).
  organizational literature. The Board applied the rule of
  Republic Aviation in this situation, but the court held that      The D.C. Circuit went on to address the reasonableness of
  there is a distinction “of substance” between “rules of         the Board’s decision in ITT Industries, and found that the
Nos. 01-2478/2673      First Healthcare Corp. v. NLRB       13   14   First Healthcare Corp. v. NLRB         Nos. 01-2478/2673

Board’s decision was conclusory and lacked sufficient              with the employer’s right to control the use of his
consideration or analysis of the interests involved. Id. at        property. See Lechmere, 502 U.S. at 534.
1004. Specifically, the D.C. Circuit opined in relevant part
regarding the deficiencies it found with the Board’s decision:   ITT Indus., Inc., 251 F.3d at 1004-005.

     First, the Board failed even to acknowledge that the          B. The Board’s Decision
  question of off-site employee access rights was an open
  one, i.e., that, in Chevron terms, § 7 and the Court’s            At the time the instant case was decided by the Board, it
  cases are silent on the issue. Rather, the Board decided       had the benefit of the D.C. Circuit’s criticisms of ITT
  sub silento that § 7 guarantees all off-site employees,        Industries, Inc., although the D.C. Circuit’s mandate had yet
  whether members of the same bargaining unit or not,            to issue and the Board had not received additional briefing by
  some measure of free-standing, nonderivative rights. See       the parties on the subject of the remand. The Board found
  Board Decision at 4 (“[E]mployees of the employer who          that it was “guided by” the D.C. Circuit’s decision
  work at one plant are still considered employees of the        nonetheless, and thus concluded as follows regarding the
  employer if they handbill at another of the employer’s         instant case:
  plants.”). Indeed, by applying the Tri-County balancing
  test, the Board decided without analysis that trespassing        (1) under Section 7 of the Act, offsite employees (in
  off-site employees possess access rights equivalent to           contrast to nonemployee union organizers) have a
  those enjoyed by on-site employee invitees. Because it           nonderivative access right, for organizational purposes,
  is by no means obvious that § 7 extends nonderivative            to their employer’s facilities; (2) that an employer may
  access rights to off-site employees, particularly given the      well have heightened property-right concerns when
  considerations set forth in the Court’s access cases, the        offsite (as opposed to onsite) employees seek access to
  Board was obliged to engage in considered analysis and           its property to exercise their Section 7 rights; but (3) that,
  explain its chosen interpretation.                               on balance, the Section 7 organizational rights of offsite
                                                                   employees entitle them to access to the outside, non-
                               ***                                 working areas of the employer’s property, except where
                                                                   justified by business reasons, which may involve
     Second, even were we here to find reasonable the              considerations not applicable to access by off-duty, on-
  Board’s decision to read into § 7 some measure of free-          site employees. To this extent, the test for determining
  standing, non-derivative access rights for off-site              the right to access for offsite visiting employees, differs,
  employees, the Board nevertheless failed to explain why          at least in practical effect, from the Tri-County test for
  the scope of such rights should be defined by the same           off-duty, on-site employees.
  Tri-County balancing test used to delineate the scope of
  on-site employee access rights. Lechmere makes clear           NLRB v. First Healthcare Corp., 2001 WL 1685280, at *3.
  that, even as to on-site employees, the Board must             In reaching this conclusion, the Board took into consideration
  balance the conflicting interests of employees to receive      the main two criticisms expressed by the D.C. Circuit in ITT
  information on self-organization on the company’s              Industries, Inc.: 1) inadequate analysis as to the Section 7
  property from fellow employees during nonwork time             access rights of off-duty, offsite employees seeking access for
                                                                 the purpose of engaging in organizational activity, 2) and
Nos. 01-2478/2673      First Healthcare Corp. v. NLRB        15    16   First Healthcare Corp. v. NLRB      Nos. 01-2478/2673

inadequate analysis of the private property rights of              significant because “[n]othing in either the Act or the
employers as to such individuals when balancing the interests      Supreme Court’s decisions establishes that the Section 7
involved. Id.                                                      rights of employees of a particular employer, as against that
                                                                   employer, are somehow derivative of other employees’ rights,
    1.   Section 7 Rights of Offsite Employees                     when they are exercised at a location other than the customary
                                                                   site of employment.” Id. (emphasis in original).
   As to the Section 7 rights of offsite employees, the Board
began by agreeing with the D.C. Circuit’s observation that            The Board also observed that offsite employees were
“the Supreme Court’s decisions ‘certainly do not stand for the     significantly different from onsite employees in that when an
proposition that all trespassers, whether they be non-             offsite employee seeks to encourage union organization at the
employee union organizers or offsite employees, possess only       company for which he works (the parent company of the
derivative [Section] 7 access rights.’” First Healthcare           individual locations), he seeks to do so for his own welfare
Corp., 2001 WL 1685280, at *4 (quoting ITT Indus., Inc., 251       even though he is engaging in the organizational activity at a
F.3d at 1002) (emphasis in ITT Indus.)). Rather, the Board         company location other than that to which he is assigned. Id.
opined, under the Supreme Court’s decisions, “offsite              The Board found this distinction significant because in
employees are fundamentally different from non-employee            attempting to organize the unorganized, there is strength in
union organizers, although the situation of offsite employees      numbers to increase the power of the union and ultimately to
is not identical to that of onsite employee invitees.” Id.         improve the working conditions for the onsite and offsite
(comparing Lechmere, Inc. v. NLRB, 502 U.S. 527                    worker alike. Id. (citing Food & Commercial Workers Locals
(addressing access rights of non-employee union organizers)        957, 7, & 1036 (Meijer, Inc.), 329 NLRB 730, 734 (1999)
with Republic Aviation v. NLRB, 324 U.S. 793 (1945)                (“[T]here is abundant evidence that, in collective bargaining,
(addressing protected activity by onsite employees) and            unions are able to obtain higher wages for the employees they
Eastex, Inc. v. NLRB, 437 U.S. 556 (1978) (same)).                 represent . . . when the employees of employers in the same
                                                                   competitive market are unionized.”)) That is, when “off-site
  The Board went on to observe that “[o]ffsite employees are       employees seek to organize fellow employees, they act within
not only ‘employees’ within the broad scope of Section 2(3)        the immediate employee-employer relationship.”             Id.
of the Act, they are ‘employees’ in the narrow sense:              (emphasis in original.) Thus, the Board concluded, “[t]he
‘employees of a particular employer’ (in the Act’s words),         core concerns of Section 7, which protects the ‘right to self-
that is, employees of the employer who would exclude them          organization,’ undeniably are implicated.” Id.
from its property.” Id. The Board further observed that the
offsite workers are significantly different in several important     In short, the Board found that the interests shared among
respects from those persons who themselves have no                 onsite as well as offsite employees such as “wages, benefits,
employment relationship with the particular employer. Id.          and other work-place issues [are those] that may be addressed
For example, the Board observed that as compared to non-           by concerted action.” Id. at 5. The Board recognized the
employees, the Section 7 rights of offsite employees “involve      D.C. Circuit’s observation in ITT Industries that the
not just the shared interests of statutory employees as            “‘interests of employees located on a single employer site do
members of the working class, or as employees working in           not always coincide with the collective interests of employees
the same sector, industry, or community, but as employees          located on several different sites.’” Id. (citing 251 F.3d at
working for the same employer.” Id. The Board found this           1005). However, the Board found that
Nos. 01-2478/2673      First Healthcare Corp. v. NLRB       17    18    First Healthcare Corp. v. NLRB       Nos. 01-2478/2673

  [t]he fact remains that employees often will share                 The Board went on to note that, as the Supreme Court had
  significant interests, even if their interests are not          made clear, it is the “‘task of the Board’” to “‘resolve
  identical. In a particular case, the fact that offsite          conflicts between [Section] 7 rights and private property
  employees are seeking to organize their fellow                  rights, and to seek a proper accommodation between the
  employees suggests that they believe there is a basis to        two.’” Id. (quoting Hudgens, 424 U.S. at 521)). The Board
  make common cause. There is some merit in taking into           further noted that with respect to off-duty, onsite employees,
  account employees’ judgments of their own interests.            the Board’s accommodation of the two competing rights has
                                                                  been widely accepted by the courts via the Tri-County rule;
Id. Thus, the Board concluded that for all of the above-cited     that is, the Board has authority under Section 8(a)(1) of the
reasons, “the Section 7 rights of offsite employees are non-      Act to prevent employers from denying off-duty employees
derivative and substantial.” Id.                                  seeking to assert their organizational rights under Section 7
                                                                  access to outside non-working areas of the employer’s
    2.   Employer’s Private Property Interests                    property unless the employer presents valid business
                                                                  justifications for the restriction. Id. The situation of off-duty
   In order to satisfy the D.C. Circuit’s second concern          offsite employees “implicates some distinct considerations,”
expressed with the Board’s decision in ITT Industries—that        the Board continued. Id. at *6. “On one view, such
under Lechmere, even as to onsite employees, the Board must       employees are (as [Petitioner] here describes them)
balance the conflicting interests of employees to receive         ‘strangers’ to the employer, in contrast to off-duty, onsite
information on self-organization on the company’s property        employees. . . . Of critical importance, on the other hand, is
from fellow employees during non-work time with the               the fact that an employment relationship exists between them
employer’s right to control the use of its property—the Board     and the employer, which distinguishes offsite employees from
next addressed Petitioner’s private property interests. Id. at    the ordinary trespasser, who truly is a stranger.” Id. Because
*5. In this regard, the Board began by noting that the D.C.       of the existence of this employment relationship, the Board
Circuit found that offsite employees may be regarded as           observed, “the employer has a lawful means of exercising
trespassers by the employer and this must be considered in        control over the offsite employee (even regarded as a
weighing the access rights of offsite employees. Id. “[O]f        trespasser), independent of its property rights.” Id. That is,
course,” the Board continued, “[b]roadly viewed, any              “[s]urely it is easier for an employer to regulate the conduct
employee engaged in activity to which the employer objects        of an employee—as a legal and a practical matter—than it is
on its property, might be deemed a trespasser, not an invitee:    for an employer to control a complete stranger’s infringement
the employer arguably is free to define the terms of its          on its property interests. The employer, after all, controls the
invitation to employees.” Id. Thus, the Board observed, there     employee’s livelihood.” Id.
is “an inherent tension” between “an employer’s private
property rights and the Section 7 rights of its employees.” Id.      The Board acknowledged that an employer, in protecting its
(citing Republic Aviation Corp., 324 U.S. at 802 n.8              interests and preserving its property rights, does not face
(“Inconvenience or even some dislocation of property rights,      precisely the same scenario in dealing with the access rights
may be necessary in order to safeguard the right to collective    of off-duty, onsite employees as opposed to off-duty, offsite
bargaining.”)).                                                   employees; however, the Board opined, in the context of the
                                                                  latter case, “an employer’s property interests, as well as its
                                                                  related management interests, may be given due recognition
Nos. 01-2478/2673      First Healthcare Corp. v. NLRB         19    20    First Healthcare Corp. v. NLRB        Nos. 01-2478/2673

without granting it the unqualified right to exclude offsite          example, to require apparent trespassers to identify
employees pursuing organizational activity.” Id. The result           themselves and thus to determine whether the person
of an employer possessing such an unqualified right against           seeking access is, in fact, an offsite employee of the
off-duty offsite employees, the Board proclaimed, would               employer.
effectively be to foreclose the exercise of Section 7 rights, and
such a result runs counter to the Supreme Court’s admonition        Id. at 7. The Board cautioned, however, “that an employer
that the “‘[a]ccommodation between employees’ [Section] 7           must demonstrate why its security needs or related business
rights and employers’ property rights . . . must be obtained        justifications warrant restrictions on access by offsite visiting
with as little destruction of one as is consistent with the         employees. We will review an employer’s proffered
maintenance of the other.’” Id. (quoting Hudgens, 424 U.S.          justification carefully, on a case-by-case basis.” Id.
at 521 (internal quotation marks and citation omitted)).
                                                                       In applying this balance to the facts of the instant case, the
  Having found that off-duty offsite employees enjoy                Board first found that Chavez and Davenport, as “offsite
Section 7 organizational rights of access that are freestanding     employee visitors” to Petitioner’s Highland facility and its
and nonderivative, and having recognized that employers             Bakersfield facility, respectively, sought access to the
possess private property concerns regarding the access of off-      facilities to promote the Union and the benefits that it offered.
duty offsite employees seeking to exercise Section 7                Id. The Board then found that in exercising their Section 7
organizational rights, the Board then went on to balance these      rights to organize at facilities other than those to which they
competing interests.                                                were assigned to work, Chavez and Davenport did so for the
                                                                    purpose of “strengthening their own Union and ultimately to
    3.   Balancing Section 7 Rights Against Private                 better their own working conditions.” Id. Thus, the Board
         Property Interests                                         concluded, “these employees [Chavez and Devenport] had a
                                                                    freestanding, nonderivative right of access under the Act.” Id.
  In balancing the respective rights, the Board concluded that      The Board also found that to the extent that Chavez and
“the Section 7 organizational rights of offsite employees           Davenport entered onto Petitioner’s parking lot or outside
entitle them to the outside, non-working areas of the               break area against Petitioner’s rules, they trespassed onto the
employer’s property, except where justified by business             property (i.e., they were not invitees); however, where in each
reasons.” Id. at *6. The Board went on to explain that “[i]n        instance a single visiting offsite employee entered an outside
weighing those reasons, we will take into account an                area of the facility, the Board concluded that the interference
employer’s ‘predictably heightened property concerns’ (in the       with Petitioner’s property interests “was not substantial.” Id.
words of the ITT Industries court) when offsite, as opposed to
onsite, employees are involved.” Id. For example, the Board           “Critically,” the Board explained, it examined Petitioner’s
noted that                                                          business justifications for its rule against allowing the offsite
                                                                    employees access rights. Id. In doing so, the Board noted
  [i]n some cases, an influx of offsite employees might             that Petitioner’s primary reason for prohibiting offsite
  raise security problems, traffic control problems, or other       organizing employees access rights was to provide for the
  difficulties that might well justify an employer’s                “‘welfare, peace and tranquility’” of its nursing home
  restriction (or even prohibition) of such access.                 residents. Id. The Board found that the offsite employees did
  Appropriate measures might also be justified, for                 not enter the nursing homes where they would be most likely
Nos. 01-2478/2673       First Healthcare Corp. v. NLRB         21    22    First Healthcare Corp. v. NLRB       Nos. 01-2478/2673

to come in direct contact with patients. The Board also found        policy which it enforced to prohibit the employees of one of
that Petitioner’s witness, Dr. Stone, a geriatric specialist,        [Petitioner’s] facilities from gaining access to the nonworking
admitted that a new face on the premises might as likely             outside areas at any other facility for the purpose of union
stimulate as disturb one of the residents. Id. Finally, the          organizing and enforcing that provision.” Id. (footnote
Board observed that Petitioner failed to show how a visiting         omitted).
employee organizer might disturb the nursing home residents
any more than a visiting delivery person or a visitor coming           In a footnote to the Board’s decision, the Board agreed with
to see a resident. Id.                                               the ALJ that “at least until July 12, 1995, [Petitioner]
                                                                     maintained a rule for its nonunion service staff in California
   Another business justification proffered by Petitioner was        which stated that ‘When you are off duty, don’t return to the
that given its many facilities and employees, it would be            facility unless you are picking up your paychecks or are
extremely difficult and burdensome to keep track of all its          making an authorized visit.” Id. at n.10. The Board also
employees. The Board was unpersuaded by this argument as             agreed with the ALJ that this provision unlawfully prohibited
applied to the facts of this case inasmuch as in each instance       off-duty employees from returning to the nonwork areas of
a single offsite employee sought access at one of Petitioner’s       their own facility unless “authorized,” and therefore Petitioner
facilities, and Petitioner, in disallowing access, did not           had violated Section 8(a)(1) in this regard as well. Id.
contend that it was unable to determine the employment
status of the offsite employee. Id.                                       4.   The Board’s Remedy for Petitioner’s Violations

   The final justification offered by Petitioner for its no access      To remedy the violations found by the Board, it was
rule was the Union’s “dignity campaign.” Id. at *8.                  ordered that Petitioner post cease and desist notices at all of
Specifically, according to Petitioner, the ALJ prevented it          its nonunion facilities in California.          The ALJ had
from introducing evidence at the hearing for the purpose of          recommended that Petitioner be required to post cease and
establishing that the Union and its supporters had previously        desist notices at the three facilities directly involved in the
engaged in violent and disruptive actions. But the Board             proceeding; however, the Board ordered a broader remedy.
noted that its rule forbidding access to offsite employees was
not tailored to address violent and disruptive acts; rather, the       C. Analysis
Petitioner would prohibit all access by offsite visiting
employees. “Indeed,” the Board proclaimed, “employees                     1.   Section 7 Organizational Rights of Offsite
Chavez and Davenport acted appropriately and with decorum                      Employees
in attempting to engage in organizational activity. Thus, we
agree with the [ALJ] that the [Petitioner] could not establish         The value of an employee’s right to organize in a collective
its business justification defense by reference to alleged union     effort for union protection is well steeped in the law and
activity occurring at other places and at other times.” Id.          jurisprudence. As the Supreme Court recognized in Sears,
                                                                     Roebuck & Co. v. San Diego County District Council of
  Having found that the balance of rights tipped in favor of         Carpenters, 436 U.S. 180, 189 (1978) (footnote omitted):
the offsite employees under the facts of this case, the Board
concluded that Petitioner had violated “Section 8(a)(1) by               The enactment of the NLRA in 1935 marked a
maintaining a provision of its solicitation and distribution           fundamental change in the Nation’s labor policies.
Nos. 01-2478/2673       First Healthcare Corp. v. NLRB         23    24    First Healthcare Corp. v. NLRB        Nos. 01-2478/2673

  Congress expressly recognized that collective                      onto its property absent a showing that the onsite employees
  organization of segments of the labor force into                   have no other reasonable method to learn of their rights to
  bargaining units capable of exercising economic power              organize.
  comparable to that possessed by employers may produce
  benefits for the entire economy in the form of higher                 Respondent, the NLRB, likens offsite employees to off-
  wages, job security, and improved working conditions.              duty onsite employees, and argues that the scope of their
  Congress decided that in the long run those benefits               rights should be that as set forth in Tri-County. That is to say,
  would outweigh the occasional costs of industrial strife           an employer cannot deny off-duty onsite employees access to
  associated with the organization of unions and the                 outside non-working areas of the facility for purposes of
  negotiation and enforcement of collective-bargaining               exercising organizational rights unless the employer has
  agreements. The earlier notion that union activity was a           “justified business reasons” for doing so. Tri-County, 222
  species of ‘conspiracy’ and that strikes and picketing             N.L.R.B. 1089. Stated differently, the NLRB argues that
  were examples of unreasonable restraints of trade was              offsite employees enjoy organizational rights that are
  replaced by an unequivocal national declaration of policy          nonderivative, such that Petitioner cannot lawfully deny
  establishing the legitimacy of labor unionization and              offsite employees access to its property without “justified
  encouraging the practice of collective bargaining.                 business reasons” for doing so.

  Today the Court is faced with determining the scope of the           The employee/non-employee distinction for purposes of
organizational access rights of a certain type of employee—an        determining organizational access rights is significant because
employee of the parent company, but not one of the facility at       “[b]y its plain terms, [] the NLRA confers rights only on
which the employee seeks access, known as an “offsite                employees, not on unions or their nonemployee organizers.”
employee.”                                                           Lechmere, 502 U.S. at 532 (emphasis in Lechmere). Indeed,
                                                                     in commenting on its ruling in Babcock, the Supreme Court
   Petitioner, the employer in this case, likens offsite             opined that in Babcock it
employees to non-employees (or strangers) and argues that
the scope of their rights should be limited to that of the rights      explained that the Board had erred by failing to make the
of non-employees as set forth in Babcock. That is to say, as           critical distinction between the organizing activities of
a rule, an employer cannot be compelled to allow distribution          employees (to whom § 7 guarantees the right of self-
of union literature by non-employee organizers on his                  organization) and nonemployees (to whom § 7 applies
property, but where “the location of a plant and the living            only derivatively). Thus, while “[n]o restriction may be
quarters of the employees place the employees beyond the               placed on the employees’ right to discuss self-
reach of reasonable union efforts to communicate with them,”           organization among themselves, unless the employer can
the employer’s property rights may be “required to yield to            demonstrate that a restriction is necessary to maintain
the extent needed to permit communication of information on            production or discipline,” “no such obligation is owed to
the right to organize.” Babcock, 351 U.S. at 112. Stated               nonemployee organizers.”
differently, Petitioner argues that to the extent that the offsite
employees have organizational access rights, the rights are          Lechmere, 502 U.S. at 846 (quoting Babcock, 351, U.S. at
purely derivative of the onsite employees, and Petitioner            113) (emphasis added, citations omitted).
cannot be ordered to allow the offsite employees to trespass
Nos. 01-2478/2673      First Healthcare Corp. v. NLRB        25    26   First Healthcare Corp. v. NLRB        Nos. 01-2478/2673

   In seeking to strike the proper balance of rights in Hudgens,   First Healthcare Corp., 2001 WL 1685280, at *4 (“Nothing
424 U.S. at 522, the Court distinguished Babcock based on          in either the Act or the Supreme Court’s decisions establishes
the fact that “the § 7 activity [in Hudgens] was carried on by     that Section 7 rights of the employees of a particular
[the employer’s] employees (albeit not employees of its            employer, as against that employer, are somehow derivative
shopping center store), not by outsiders [or nonemployees].”       of other employees’ rights, when they are exercised at a
Furthermore, in Hudgens, the Court noted that in Republic          location other than the customary site of employment.”)
Aviation Corp. v. NLRB, 324 U.S. 793 (1945), a wholly              (emphasis in original). The Board also engaged in a
different balance was struck between the employees and             meaningful analysis of why offsite employees are more akin
employers than was struck in Babcock because “the                  to onsite-employees for purposes of Section 7, noting in part
organizational activity [in Republic Aviation] was carried on      that offsite and onsite employees share the same common
by employees already rightfully on the employer’s property,        concerns as to a specific employer, not only as to employment
since the employer’s management interests rather than his          in general for purposes of garnering union support, but also
property interests were there involved.” Hudgens, 424 U.S.         on matters relating to such things as wages, benefits, and
at 522 n.10. The Hudgens Court found this difference to be         other workplace issues. As the Board observed, the fact that
“‘one of substance.’” Id. (quoting Babcock, 351 U.S. at 113).      offsite employees seek to organize their fellow employees at
                                                                   a different location suggests that they believe that there a
  Against this backdrop, the Board’s finding that offsite          basis to make a common cause.
employees enjoy Section 7 organizational rights of access that
are non-derivative was reasonable under the law. See                  Petitioner argues that the Board’s decision runs counter to
Chevron, 467 U.S. at 842-43; cf. Turnbull Cone Baking Co.,         Supreme Court precedent that stranger employees (offsite
778 F.2d at 295 (“If the Board errs in determining the proper      employees) are trespassers and therefore have no independent
legal standard, the appellate court may refuse enforcement on      right of access to Petitioner’s facilities where they are not
the grounds that the order has ‘no reasonable basis in law.’”).    otherwise actually employed. In this regard, Petitioner relies
To conclude otherwise would do violence to the plain               heavily upon Babcock and Lechmere, and Petitioner would be
language of the Act, see 29 U.S.C. § 157, and run counter to       correct in its argument if it could demonstrate that the Board’s
decisions from the Court which make clear distinctions in the      conclusion that offsite employees are more akin to non-
scope of an individual’s § 7 organizational access rights based    employees than onsite employees is unreasonable. Instead,
upon an individual’s status as an employee or a non-               Petitioner presupposes that offsite employees (or “stranger
employee. See, e.g., Lechmere, 502 U.S. at 532.                    employees” in Petitioner’s words) should be considered non-
                                                                   employee trespassers, and simply reiterates the D.C. Circuit’s
  Furthermore, in reaching its conclusion, the Board properly      criticisms in ITT Industries without taking into account the
considered the D.C. Circuit’s concerns expressed in ITT            Board’s attempts to satisfy the D.C. Circuit’s concerns. Such
Industries, 251 F.3d at 1004—that the Board failed to engage       arguments woefully miss the mark under this Court’s review
in any meaningful analysis and explain its interpretation of       inasmuch as the Court is to give deference to the Board’s
the Act. As noted, in an attempt to satisfy the criticisms of      findings if reasonable.
the D.C. Circuit in ITT Industries regarding the issue before
this Court, the Board took account of the Act and the                Likewise, we are not persuaded by Petitioner’s argument
Supreme Court’s pronouncements in reaching its decision that       that the Board’s decision is erroneous because it goes beyond
offsite employees enjoy non-derivative organizational rights.      the holding of its prior decisions, finding that stranger
Nos. 01-2478/2673      First Healthcare Corp. v. NLRB       27    28    First Healthcare Corp. v. NLRB       Nos. 01-2478/2673

employees had a right of access onto their employer’s               Petitioner also relies upon a case decided by the Fifth
property only when the stranger employees shared a                Circuit in 1960, NLRB v. Great Atlantic & Pacific Tea Co.,
community of interests with the onsite employees. In this         277 F.2d 759 (5th Cir. 1960), wherein the court found against
regard, Petitioner relies in part upon United States Postal       the Board and held that an employer may forbid union
Service, 318 NLRB 466 (1995), wherein the Board found that        solicitation by employees in stores other than stores in which
offsite employees had a right of access to the employer’s         the soliciting employees worked, when the solicitation was
property for organizational purposes, noting that the offsite     occurring inside the employer’s facility. Id. at 763. As the
employees                                                         NLRB argues, the distinction regarding inside-versus-outside
                                                                  access by offsite employees is significant and clearly
  enjoy[ed] the same benefits and working conditions              distinguishes Great Atlantic & Pacific from the matter at
  regardless of the facility at which they work. For              hand, particularly when this case was decided long before Tri-
  example, vacation benefits accrue in the same manner            County and much of the Supreme Court’s later jurisprudence.
  and rate regardless of an employee’s assigned facility.
  Years of employment are counted toward an employee’s              Thus, we conclude that the Board’s interpretation of the Act
  pension from the day the employee is hired to the day he        as providing offsite employees nonderivative and substantial
  or she retires, regardless of which facility he or she is       Section 7 organizational rights was reasonable and should be
  assigned. In addition, an employee who is involuntarily         given deference.
  transferred from one postal facility to another maintains
  his or her seniority regardless of the change of facility.           2.   Employer’s Private Property Concerns

Id. at 467.                                                         We are not persuaded by Petitioner’s argument that the
                                                                  Board failed to consider Petitioner’s private property rights in
   Here, contrary to Petitioner’s claims, the Board did in fact   deciding the scope of Section 7 rights of offsite employees.
recognize the common interests shared by offsite and onsite       In this regard, Petitioner argues that evidence of prior acts
employees, in part, when it noted that “[w]hen an offsite         would have revealed that the offsite employees were not
employee seeks to encourage the organization of similarly         seeking access to Petitioner’s property for the purpose of
situated employees of another employer facility, the employee     organizing the onsite employees, but rather for the purpose of
seeks to further his own welfare. In attempting to organize       pressuring Petitioner. Thus, according to Petitioner, this
the unorganized, employees seek strength in numbers to            evidence was relevant to show the true motivation behind the
increase power of their union and ultimately to improve their     offsite employees’ acts and Petitioner’s need to exclude them.
own working conditions.” First Healthcare Corp., 2001 WL
1685280, at *4. The Board further found in this regard that         As argued by the NLRB, evidence was introduced at the
“[p]recisely because they work for the same employer, even        hearing showing that the offsite employees were on
at different workplaces, employees will often have common         Petitioner’s property for the purpose of distributing
interests and concerns related to wages, benefits, and other      organizational materials. The record supports the NLRB’s
workplace issues that may be addressed by concerted action.”      claim where the leaflets distributed by the offsite employees
Id. at *5.                                                        in question carried a clear organizational message and
                                                                  solicited employees to call or mail in cards to find out more
Nos. 01-2478/2673      First Healthcare Corp. v. NLRB         29   30    First Healthcare Corp. v. NLRB        Nos. 01-2478/2673

information about the Union. Thus, the Board’s finding as to          Under the facts of this case, the Board’s decision that the
the relevancy of this evidence was not unreasonable.               balance of rights tips in favor of the offsite employees was
                                                                   supported by substantial evidence. Petitioner failed to
  In addition, the Board recognized that as to offsite             support its claim that it was necessary to deny the offsite
employees, an employer may have “heightened property-right         employees access in order to preserve the “welfare, peace and
concerns” when offsite (as opposed to onsite) employees seek       tranquility” of its nursing home residents. Indeed, as found
access to property to exercise their Section 7 rights; however,    by the Board, the offsite employees did not enter the inside of
with this recognition in mind, the Board was not persuaded         Petitioner’s facilities, nor have the offsite employees ever
that Petitioner’s concerns, or alleged “justified business         sought access to the inside of the facilities where they would
reasons,” outweighed the offsite employees’ access rights in       most likely come in contact with or be observed by a resident.
this case.                                                         Moreover, as the Board also found, even if the residents were
                                                                   to come in contact with an offsite employee, evidence was
    3.   Balancing the Offsite Employees’ Section 7                admitted that a new face on the premises may just as likely
         Rights Against the Employer’s Property                    stimulate as disturb one of the residents. Finally, Petitioner
         Concerns                                                  failed to show that if an offsite employee did have contact
                                                                   with a resident, the offsite employee might be more likely to
  The Board crafted the following test along the lines of Tri-     disturb a resident than, say, a delivery man. Although
County for determining whether, on a case-by-case basis, the       Petitioner’s interest in maintaining the “welfare, peace and
Section 7 organization rights of offsite employees should bow      tranquility” of its residents is a noble interest, Petitioner has
to the property concerns of the employer:                          failed to demonstrate why this interest is a justifiable one in
                                                                   prohibiting the offsite employees from having access to its
  (1) under Section 7 of the Act, offsite employees (in            facilities under the facts of this case.
  contrast to nonemployee union organizers) have a
  nonderivative access right, or organizational purposes, to          Similarly, Petitioner failed to proffer evidence to support its
  their employer’s facilities; (2) . . . an employer may well      alleged business reason for denying offsite employees
  have heightened property-right concerns when offsite (as         access—that it would be extremely difficult and burdensome
  opposed to onsite) employees seek access to its property         to keep track of all of its employees. In fact, the record
  to exercise their Section 7 rights; but (3) . . . on balance,    indicates that issue of offsite employee identification was not
  the Section 7 organizational rights of offsite employees         a problem here. When offsite employee Davenport was
  entitle them to access to the outside, non-working areas         barred from engaging in organizational activity, he was
  of the employer’s property, except where justified by            wearing her employee identification badge, and when Chavez
  business reasons, which may involve considerations not           was barred from engaging in organizational activity, she was
  applicable to access by off-duty, on-site employees. To          identified by an onsite employee as one of Petitioner’s offsite
  this extent, the test for determining the right to access for    employees. As found by the Board, Petitioner did not
  offsite visiting employees, differs, at least in practical       contend that it was unable to identify the offsite employees in
  effect, from the Tri-County test for off-duty, on-site           this case. Thus, the Board’s conclusion that this reason
  employees.                                                       bowed to the offsite employees’ rights was supported by
                                                                   substantial evidence and reasonable.
First Healthcare Corp., 2001 WL 1685280, at *3.
Nos. 01-2478/2673       First Healthcare Corp. v. NLRB          31    32   First Healthcare Corp. v. NLRB      Nos. 01-2478/2673

  Moreover, the Board’s order expressly provides Petitioner             Finally, Petitioner’s argument that in striking the balance,
with a means of denying access if it is faced with an                 the Board was required to consider whether the onsite
inordinate number of offsite employees seeking access to a            employees had a reasonable way to acquire information about
facility. Specifically, the Board expressly stated that               the union on their own, is misplaced inasmuch as such an
                                                                      inquiry is made only when nonemployees are on an
  [i]n some cases, an influx of offsite employees might               employer’s property. See Babcock, 351 U.S. at 112.
  raise security problems, traffic control problems, or other
  difficulties that might well justify an employer’s                    D. Summary
  restriction (or even prohibition) of such access.
  Appropriate measures might also be justified, for                     The Board’s decision has a reasonable basis in the law, and
  example, to require apparent trespassers to identify                substantial evidence on the whole supports the Board’s
  themselves and thus to determine whether the person                 conclusion that Petitioner violated Section 8(a)(1) by denying
  seeking access is, in fact, an offsite employee of the              offsite employees seeking to exercise their Section 7
  employer.                                                           organizational rights access to its facilities. Turnbull Cone
                                                                      Baking Co., 778 F.2d at 295.
Id. at *7. Thus, if Petitioner is faced with a security concern
by not being able to identify offsite employees in an orderly         III. SUBSTANTIAL EVIDENCE SUPPORTS THE
or reasonable fashion, the Board has taken account of such a          BOARD’S FINDING THAT PETITIONER VIOLATED
situation and may well consider the employer’s denial of              SECTION 8(a)(1) OF THE ACT BY MAINTAINING OR
access in such a situation to be justified. As the Board              ENFORCING A RULE THAT PROHIBITS ITS OFF-
indicated, it would decide such situations on a “case-by-case         DUTY EMPLOYEES FROM SOLICITING IN THE
basis” thus illustrating that Petitioner in this case, or any other   OUTSIDE NONWORK AREAS OF THE FACILITY
similarly situated employer, would not be without recourse if         WHERE THEY WORK.
it were faced with security concerns, traffic problems, or other
difficulties in allowing offsite employees access to its                A. Background Into Basis for the Violation
facilities.
                                                                        In addition to finding that Petitioner violated Section
   As to Petitioner’s claim that its no access rule was               8(a)(1) of the Act by denying access to offsite employees, the
necessary due to the Union’s dignity campaign, substantial            Board also found that at least until July 12, 1995, Petitioner
evidence supports the Board’s conclusion that this alleged            violated Section 8(a)(1) by maintaining a rule that prohibited
reason fails in light of the record. Indeed, the record indicates     off-duty employees from soliciting in the exterior non-work
that Chavez and Davenport acted appropriately, and nothing            areas of the facility at which they were employed. The rule
in Petitioner’s rule indicates that it was designed to deny           to which this violation applied was included in Petitioner’s
access to violent or disruptive offsite employees. As found           employee handbook under the heading “Solicitation and
by the Board, Petitioner’s sweeping no access rule was not            Distribution Policy” and stated as follows: “When you are off
tailored to justify the result. Thus, substantial evidence            duty, don’t return to the facility unless you are picking up
supports the Board’s determination in this regard as well.            your paychecks or are making an authorized visit.” First
                                                                      Healthcare Corp., at *8 n.10 (hereinafter termed “the no
                                                                      access rule” or “the no access policy”). The term “authorized
Nos. 01-2478/2673      First Healthcare Corp. v. NLRB        33    34   First Healthcare Corp. v. NLRB       Nos. 01-2478/2673

visit” was defined by Petitioner’s labor counsel as a return to      protected activities. That fact in conjunction with the
the facility for a “work/job-related reason.” (J.A. at 686.)         fact that there is no explicit agreement to forebear
                                                                     prosecution if any of the so called extraneous 8-A-1's and
   Petitioner seeks review of the Board’s decision in this           given the detail and competence of legal representation
regard claiming that the no access rule issue was not properly       enjoyed by Respondent [now Petitioner] throughout the
before the Board for procedural reasons. Petitioner also             proceeding, I can not [sic] find that there was an
argues that because the no access rule had been disposed of          agreement to abandon the so called extraneous 8-A-1's
several years earlier and was not in effect in 1995, the Board’s     [the no access rule violation]. Accordingly, the Motion
findings regarding the no access rule were not supported by          to Dismiss paragraphs nine (9) through (14) of the
substantial evidence.                                                Complaint is denied as well.
   This case was originally submitted to the Board in              (J.A. at 27-28.) The Board agreed with the ALJ that the no
December of 1995 on a stipulated record. The stipulated facts      access rule issue was properly at issue at the hearing.
related exclusively to the prior issue dealing with the access
rights of offsite employees. The Board decided that the              B. Issue on Appeal
stipulation had been improvidently accepted, and remanded
the matter for a hearing before the ALJ. At the hearing,             On appeal, Petitioner makes the same arguments as it did
Petitioner argued that the no access rule was no longer at         before the ALJ regarding the propriety of the no access rule
issue, but the NLRB argued otherwise, noting that the motion       being at issue. Petitioner claims that because the no access
to transfer the proceedings included the allegations in the        rule issue was not included in the stipulated facts, it was
amended complaint which included allegations that the no           understood by the parties that they were “effectively
access rule violated the Act. The NLRB continued by arguing        disposing of that issue” and it should not have been
that Petitioner could point to nothing in the record to indicate   considered. Petitioner also claims that it was denied due
that the no access rule charges were dropped. The ALJ found        process when the ALJ considered the no access rule because
it significant that there was nothing in the record to indicate    Petitioner believed that the no access rule had been disposed
that the access rule charges had been dropped or settled. The      of and therefore did not have reasonable notice or an
ALJ went on to find that                                           opportunity to prepare a defense. Petitioner contends that
                                                                   while the case was pending, the company was sold, its
  General Counsel [the NLRB] has noted accurately that             regional office closed, and documents related to the no access
  the remand order of September 30, 1996, returns the case         rule issue were discarded or misplaced. Thus, according to
  to the Regional Director for quote, appropriate action,          Petitioner, it could not prepare its defense.
  closed quote. And that is [sic] would be possible for the
  Board to return the proceeding with instructions to                We are not persuaded by Petitioner’s claims. The record
  confine action to the hearing on the portion of the              does not support Petitioner’s due process argument where the
  evidence not then before the Board, specifically the             record contains copies of Petitioner’s handbooks with the no
  nature of the solicitation and distribution activities           access rule at issue dating back to 1990. In addition, the
  alleged in the Complaint. Accordingly, I have to find            record indicates that on February 1, 1995, in a letter to the
  that the Board did not restrict the remand solely to the         NLRB’s regional attorney, Petitioner’s counsel provided the
  taking of evidence on the nature of the allegedly                NLRB with a copy of the solicitation policy setting forth the
Nos. 01-2478/2673      First Healthcare Corp. v. NLRB         35    36   First Healthcare Corp. v. NLRB       Nos. 01-2478/2673

no access rule at issue. Thus, aside from general allegations       had been distributed, and thus concluded that the reference
that it was unable to prepare a defense, Petitioner provides        was to earlier handbooks containing the unlawful no access
nothing in particular that prevented it from defending the no       rule. The NLRB thus concludes that the ALJ did not err in
access rule allegations, and in fact the record demonstrates        this regard. In addition, the NLRB contends that the 1995
that Petitioner provided the NLRB with information regarding        handbook and the ALJ’s reliance on the memorandum aside,
this issue.                                                         substantial evidence on the record supports the Board’s
                                                                    finding.
   Petitioner next argues that contrary to the Board’s finding,
that “at least until July 12, 1995,” Petitioner unlawfully            Specifically, the NLRB contends that the unrebutted
maintained the no access rule, Petitioner’s no access rule was      testimony of union representative Gary Guthman indicated
never in effect in 1995. In support of its argument Petitioner      that during an exchange at Petitioner’s Bakersfield facility on
notes that at the hearing before the ALJ, Petitioner placed into    July 12, 1995, employees were not allowed to distribute
evidence an employee handbook, purportedly in effect in             leaflets in non-work areas outside the facility during non-
1995, which did not contain the no access rule at issue.            work hours unless they had the approval of management. The
Petitioner claims that the ALJ erroneously failed to consider       NLRB also contends that in addition to Guthman’s testimony,
this handbook, and instead relied upon a June 1, 1995               the manager at the Bakersfield facility, Maria Favereaux,
memorandum from Petitioner to the heads of its non-union            testified that Petitioner’s no access rule in 1995 was to allow
California facilities which provided that “Employees are not        employees on the premises only while they were working.
to return to their own facilities for reasons other than those      The NLRB notes that although Petitioner’s counsel attempted
contained in the handbook.” (J.A. at 858.) However,                 to impeach Favereaux as to her understanding of the no
Petitioner continues, the ALJ failed to read the next paragraph     access rule in effect in 1995, the ALJ was correct in noting
of the internal memorandum which states that “Your own              that even if he credited Petitioner’s impeachment of
employees may be permitted to return to the private property        Favereaux, this did nothing to negate the fact that Petitioner
perimeter of their own facilities (including parking lots), even    enforced the no access rule at least until July 12, 1995.
if their purpose is to organize.” (J.A. at 858.) Petitioner
contends that the sentence relied upon by the ALJ was in              Although the no access policy was removed from the 1995
reference to the internal portion of Petitioner’s facilities, and   employee handbooks and the internal memorandum does state
not the outside perimeter as the next paragraph explained.          that off-duty employees should be allowed to return to the
Petitioner notes that the policy of denying off-duty employees      perimeter of the facility even for the purpose of organizing,
access to the inside of the facility is not unlawful under the      the fact remains that Guthman’s testimony regarding
Act, and thus the ALJ erred in relying on the internal              Petitioner’s unlawful acts on July 12, 1995 was unrebutted.
memorandum as evidence that Petitioner maintained an                Petitioner failed to come forward with evidence to
unlawful no access policy until at least July 12, 1995.             demonstrate that up until July 12, 1995, other off-duty
                                                                    employees were allowed access to the facility. Accordingly,
  The NLRB argues that while it is true that the ALJ relied         where Petitioner does not dispute that prior to the 1995
upon the statement that said “Employees are not to return to        employee handbook, its handbooks contained an unlawful no
their own facilities for reasons other than those contained in      access rule regarding access by off-duty employees to the
the handbook.[,]” the ALJ found this significant because there      outside of its facilities, and where Petitioner failed to come
was nothing in the record to indicate that the 1995 handbooks
Nos. 01-2478/2673       First Healthcare Corp. v. NLRB         37    38    First Healthcare Corp. v. NLRB        Nos. 01-2478/2673

forward with evidence to rebut Guthman’s testimony,                  employees at its facilities, and that posting at all of
substantial evidence supported the Board’s finding.                  Petitioner’s facilities in California was thus required.
  C. Summary                                                            Petitioner argues that there was no evidence that any off-
                                                                     duty employee was asked to leave any of Petitioner’s
   Substantial evidence on the record supported the Board’s          premises; thus, no state-wide posting was needed.
finding that at least until July 12, 1995, Petitioner maintained     Petitioner’s argument has no merit. In its decision, the Board
a rule for its non-union service staff in California which           expressly stated that it was requiring the cease and desist
prevented the off-duty access to the outside areas of the            orders to be posted state-wide based on both of Petitioner’s
facility in violation of Section 8(a)(1).                            unlawful rules. It is true that the violations in question were
                                                                     limited to three of Petitioner’s facilities; however, because the
IV. THE BOARD ACTED WITHIN ITS BROAD                                 violations included offsite employees not being allowed
REMEDIAL DISCRETION BY ORDERING                                      access to Petitioner’s facilities, it is a logical conclusion that
PETITIONER TO POST REMEDIAL NOTICES AT                               all of Petitioner’s facilities should be made aware of the cease
EACH OF ITS NONUNION FACILITIES IN                                   and desist notice. In other words, it should be made known
CALIFORNIA.                                                          at all of Petitioner’s facilities that offsite employees cannot be
                                                                     denied access to the outside areas of Petitioner’s facilities for
  Upon finding that a violation of the Act has occurred, the         purposes of exercising their Section 7 rights because
Board’s power to fashion a remedy is a broad discretionary           Petitioner maintained company-wide policies prohibiting
one, subject to limited judicial review. Fibreboard Paper            access. See Consol. Edison Co. of N.Y., 323 N.L.R.B. at 911-
Prods. Corp. v. NLRB, 379 U.S. 203, 215-16 (1964). Thus,             12. Thus, the Board acted within its broad discretion in
the Board’s remedial orders will not be disturbed unless it can      fashioning the remedy in this case where the remedy advances
be shown that the order is a patent attempt to achieve ends          the policies of the Act. Id.
other than those which can fairly be said to effectuate the
policies of the Act. Id. (citation and internal quotation marks                             CONCLUSION
omitted).
                                                                       Substantial evidence exists on the record to support the
  Statewide cease and desist postings are proper if the unfair       Board’s findings of fact, and because there are no errors of
labor practices in which the employer was found to have been         law in the Board’s decision, we DENY Petitioner’s
engaging were part of a company-wide policy, or if it is             application for review of the Board’s order in Case No. 01-
shown that employees at other facilities were actually aware         2478; and GRANT the Board’s application for enforcement
of them. Consol. Edison Co. of N.Y., 323 N.L.R.B. 910, 911-          of its decision and order in Case No. 01-2673.
12 (1997). In this case, the Board did not limit the cease and
desist posting to the three facilities involved in this matter, as
recommended by the ALJ. Rather, the Board ordered that the
cease and desist postings be made at all of Petitioner’s
California facilities. The Board reasoned that based on the
record, it was satisfied that Petitioner maintained unlawful
rules of denying access to off-duty offsite and off-duty onsite
Nos. 01-2478/2673           First Healthcare Corp. v. NLRB              39     40    First Healthcare Corp. v. NLRB        Nos. 01-2478/2673

                          _______________                                        The majority correctly states that we review the Board’s
                                                                               factual application and statutory construction under a
                             DISSENT                                           substantial evidence standard. Albertson’s Inc. v. NLRB, 301
                          _______________                                      F.3d 441, 448 (6th Cir. 2002). This level of deference,
                                                                               however, is only warranted if the Board’s conclusions are
   JULIA SMITH GIBBONS, Circuit Judge, dissenting. This                        based on a reasonable construction of the Act. Id. Moreover,
case presents the difficult question of whether the National                   “this Court gives no deference to the Board where the Board’s
Labor Relations Board (the Board) erred in concluding that                     decision ‘rest[s] on erroneous legal foundations.”” Id.
off-duty, off-site employees have a section 7 right to access                  (quoting Lechmere, Inc. v. NLRB, 502 U.S. 527, 539 (1992)).
the outside non-working areas of their employer’s property                     “Further, where the Board’s conclusions of law do not
that outweighs the employer’s property rights, except where                    interpret the NLRA, we review those conclusions de novo.”
restrictions on access are justified by business reasons. In                   Id. Similarly, we give no deference to the Board’s
reaching this conclusion, the Board purported to balance the                   interpretation of judicial precedent and review de novo the
employees’ section 7 rights against the employer’s property                    Board’s interpretation of Supreme Court and Sixth Circuit
rights. Reviewing the Board’s decision for substantial                         precedent. Id. (quotation omitted); see Lee v. NLRB, 325 F.3d
evidence, the panel majority concludes that the Board did not                  749, 754 (6th Cir. 2003).
err in finding that the balance “tips in favor” of the section 7
organizational rights of off-site employees. (Majority Op. at                     The Board’s conclusion that “[o]n balance . . . the Section 7
28.) I dissent because I believe that a de novo standard of                    organizational rights of offsite employees entitle them to
review applies in reviewing whether the Board erred in                         access to the outside, non-working areas of the employer’s
concluding that the employees’ section 7 rights outweigh the                   property, except where justified by business reasons” does not
employer’s property rights, and, under a de novo standard of                   involve an interpretation of the NLRA. Instead, determining
review, the balance in this case favors the employer’s                         whether employees’ section 7 rights outweigh an employer’s
property rights.1                                                              property rights requires a careful examination of the relevant
                                                                               Supreme Court and Sixth Circuit precedent, as well as cases
                                                                               from other circuits, and a determination of how that case law
    1                                                                          applies to the facts present here. In reaching its decision
      I agree with the panel majority’s holding that the Board’s conclusion    below, the Board relied upon several Supreme Court
that off-site employees have non-derivative and substantial section 7
organizational rights was reasonable and should be given d eference. The       decisions and ultimately declared that allowing employers to
panel majority’s application of the substantial evidence standard of           exclude off-site employees pursuing organizational interests
review to this issue is proper because the issue involves the interpretation   would be “inconsistent with the Supreme Court’s admonition
of the NLRA . See Albertson’s Inc. v. NLRB, 301 F.3d 441, 44 8 (6th Cir.       that the ‘[a]ccommodation between employees’ [Section] 7
2002) (“we review the Bo ard’s fac tual application and statutory              rights and employer’s property rights . . . must be obtained
construction under a substantial evid ence standa rd, a deference that is
warranted if the Board’s conclusions are based upon a reaso nably              with as little destruction of one as is consistent with the
defensible construction of the Act.”) Furthermore, I agree with the            maintenance of the other.’” First Healthcare Corp., 336
majo rity’s holding set forth in section III of the opinion that substantial   N.L.R.B. 62, 2001 WL 1685280, at *6 (2001) (quoting
evidence supports the Board’s finding that Petitioner violated section         Hudgens v. NLRB, 424 U.S. 507, 521 (1976)). The Board did
8(a)(1) by maintaining o r enforcing a ru le that prohibits its off-duty       not discuss any basis in the statute for deciding this issue. Cf.
employees from soliciting in the outside nonwork are as of the facility
where they wo rk. (Majority Op. at 31 (emphasis added)).                       First Healthcare Corp., 2001 WL 1685280, at *10 (2001)
Nos. 01-2478/2673      First Healthcare Corp. v. NLRB        41    42   First Healthcare Corp. v. NLRB        Nos. 01-2478/2673

(Hurtgen, dissenting) (noting that this case falls between two     sought to picket at a retail store owned by their employer and
landmark Supreme Court cases, but finding more relevant the        located in a shopping mall. Id. at 509. In addressing whether
Supreme Court’s opinion in Hudgens and the D.C. Circuit’s          the mall owner unlawfully interfered with the employees’
opinion in ITT Industries v. NLRB, 251 F.3d 995 (2001)).           section 7 rights by threatening to have them arrested, the
Consequently, the proper standard of review of the Board’s         Court focused on the need to “seek a proper accommodation”
balancing of employees’ section 7 rights and employer’s            between section 7 rights and private property rights. Id. at
property rights is de novo. Lee, 301 F.3d at 448 (“where the       509, 521. According to the Court, “[w]hat is ‘a proper
Board’s conclusions of law do not interpret the NLRA, we           accommodation’ in any situation may largely depend upon
review those conclusions de novo.”)                                the content and the context of the [section] 7 rights being
                                                                   asserted.” Id. at 521. Furthermore, “[t]he locus of that
   The Supreme Court first addressed the tension between           accommodation . . . may fall at differing points along the
employees’ right to organize and employers’ property rights        spectrum depending on the nature and strength of the
in Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945). In        respective [section] 7 rights and private property rights
Republic Aviation, the Court held that employees have a right      asserted in any given context.” Id. at 522.
to organize their fellow employees at their employer’s
facility, provided that the solicitation is confined to               The Court also explained that neither Republic Aviation nor
nonworktime and distribution was confined to nonworktime           Babcock was controlling. With regard to Republic Aviation,
and nonwork areas. Id. at 803-05. The Court addressed the          the Court stated that a different balance exists when the
issue of the accommodation of section 7 rights versus              organizational activity is “carried on by employees already
property rights more directly in NLRB v. Babcock & Wilcox          rightfully on the employer’s property.” Id. at 522 n.10. The
Co., 351 U.S. 105 (1956). The Court held that non-                 Court distinguished Babcock on the basis that it involved
employees, such as union organizers, have no independent           “organizational activity carried on by non-employees on the
right of access to an employer’s property to organize              employer’s property.” Id. at 521. The Hudgens Court
employees at and around an employer’s facility. Id. at 113.        identified the differences present in the case before the Court,
An exception exists where the inaccessibility of the               including the fact that economic strike activity was involved,
employees prevents “reasonable union efforts to communicate        the activity was conducted by employees, albeit at a different
with them.” Id. The Court noted that both organizational           location, and the property involved was that of a third party.
rights and property rights are granted by the federal              Id. at 522. After noting these differences, the Court remanded
government, and “[a]ccommodation between the two must be           the case for an accommodation between the section 7 rights
obtained with as little destruction of one as is consistent with   and the property rights. Id. at 523.
the maintenance of the other.” Id. at 112. More recently, in
Lechmere, Inc. v. NLRB, 502 U.S. 527, 533 (1992), the                 The only decision to address the issue presently before us
Supreme Court reaffirmed the general rule that “an employer        is the D.C. Circuit’s opinion in ITT Industries Inc. v. NLRB,
cannot be compelled to allow distribution of union literature      251 F.3d 995 (D.C. Cir. 2001). In ITT Industries Inc., the
by nonemployee organizers on his property.”                        court was faced with the question of “the scope of the Board’s
                                                                   authority under §§ 7 and 8(a)(1) to prevent employers from
   While not directly on point, the Supreme Court’s decision       prohibiting parking lot access to off-site employees who are
in Hudgens v. NLRB, 424 U.S. 507 (1976), is most analogous         seeking to engage in organizational activities that would be
to the present case. In Hudgens, striking factory employees        lawful if pursued by on-site employees.” Id. at 1000. The
Nos. 01-2478/2673      First Healthcare Corp. v. NLRB        43    44   First Healthcare Corp. v. NLRB        Nos. 01-2478/2673

court began by noting that while “[i]t is not clear that the       be less when the employees are in different bargaining units
Supreme Court’s access cases foreclose the Board’s                 because they do not have common interests. First Healthcare
interpretation that § 7 confers upon offsite employees some        Corp., 2001 WL 1685280, at * 11. “The fact that they are in
measure of free-standing, nonderivative organizational access      separate units means that it has not been shown that they
rights,” the Supreme Court’s cases “do make clear . . . that the   share a ‘community of interest.’” Id. The lack of common
Board must take account of an offsite employee’s trespasser        interest indicates that the benefit to the already organized
status.” Id. at 997. Because the Board failed to take into         employees who are asserting their section 7 rights by
consideration the fact that the question of off-site employees’    engaging in union solicitation at facilities other than the
access rights was an open one and failed to consider the           facility where they work was slight.
employer’s property rights or the concerns presented by
trespassing employees, the court remanded the case to the             Unlike the employees in Hudgens, who were directly
Board for further consideration in light of these concerns. Id.    pursuing their section 7 right to strike in order to bring
at 1004-05. The court then stated that assuming the off-site       economic pressure to bear on their employer, the off-site
employees have some measure of free-standing, nonderivative        employees here have failed to set forth a direct and immediate
access rights, “the Board must balance the conflicting             interest in gaining on-site access to Petitioner’s other
interests of the employees to receive information . . . with the   facilities. While the off-site employees here have a section 7
employer’s right to control the use of his property.” Id. at       right to assist employees elsewhere in their organizational
1005. The court noted that even where all employees are in         efforts, Hudgens does not stand for the proposition that such
the same representational unit, the employees at the different     off-site employees have a section 7 right to come onto the
facilities may have different interests. Id. Therefore, the        Petitioner’s property at a facility where they do not work.
court held that if the Board determines that the off-site          Moreover, there is no evidence that the off-site employees in
employees have non-derivative section 7 access rights, “it         the instant case were unable to communicate effectively with
must then adopt a balancing test that takes proper account of      the employees of the targeted facilities in other manners,
an employer’s predictably heightened property concerns.” Id.       including contacting such employees from the public
                                                                   sidewalks and entrances to the facilities’ parking lots, without
   As the above cases make clear, every access case requires       trespassing.
an accommodation between employees’ section 7 rights and
employers’ property rights. See, e.g., Hudgens, 424 U.S. at           Having examined the nature of the organized employees’
521-22 (considering property rights where employees were           section 7 rights, it is necessary to consider the employer’s
asserting nonderivative organizational right). Here, the off-      property interests. As the court noted in ITT Industries Inc.,
site employees seek access to another facility owned by their      the off-site employees are trespassers at the site where they do
employer for the purpose of assisting other employees in           not work. 251 F.3d at 1004. Unlike onsite employees who
organizing. The employees are not directly pursuing their          are considered business invitees, off-site employees who
own interests because they are already organized. While            violate nonsolicitation policies are considered trespassers.
organizing the employees at other facilities may benefit the       See Leachmere, 502 U.S. at 530. The Board failed to
already organized employees, the extent of the benefit must        consider the trespasser status of the off-site employees despite
be balanced against the employer’s property rights. As the         its recognition that off-site employees may be deemed
dissenting judge in the Board opinion noted, the benefit of        trespassers and instead focused on the employer’s ability to
such organizational activities to the existing employees may       control an off-site employee’s conduct once such employee is
Nos. 01-2478/2673      First Healthcare Corp. v. NLRB         45    46       First Healthcare Corp. v. NLRB            Nos. 01-2478/2673

on the property. The Board virtually ignored the employer’s         (1978).2 Under California law, individuals working on the
property rights and concentrated on the business justifications     property of another, in the interest of the property owner, are
for excluding off-site employees and the employer’s                 business invitees. Jenson v. Kenneth I. Mullen, Inc., 211
management interests. The majority opinion also focuses             Cal.App.3d 653, 658 (Cal. Ct. App. 1989). When an invitee
almost entirely on the issue of business justification, instead     enters upon portions of the property where he has no right to
of the employer’s property interest, which represents a             be, however, he may become a trespasser. Powell v. Jones,
distinct legal concept. Furthermore, the majority fails to          133 Cal.App.2d 601, 606 (Cal. Ct. App. 1955). California
recognize that an employee can also be a trespasser. The term       law defines trespasser as one who has entered the property
trespasser and nonemployee are not synonymous. Cf.                  without consent by the owner. See Oettinger v. Stewart, 24
Hudgens, 424 U.S. 521-22 n.10 (noting that property                 Cal.2d 133, 136 (Cal. 1944). The off-site employees in this
interests, as opposed to management interests, are implicated       case were trespassers, not business invitees like on-site
when organizational activity is carried on by employees that        employees. On balance, Petitioner’s right to exclude the off-
are not rightfully on the employer’s property).                     site employee trespassers outweighs the off-site employees’
                                                                    section 7 right to assist in organizing other employees with
  Property rights are an essential part of the United States        whom they lack common interests.
Constitution. See NLRB v. Windemuller Elec., Inc., 34 F.3d
384, 394 & n.8 (6th Cir. 1994) (citing Dolan v. City of               For all the reasons set forth above, I would find that the
Tigard, 512 U.S. 374 (1994)). According to the Supreme              Board erred in concluding that Petitioner violated section
Court, property owners have the right to control the use of         8(a)(1) of the Act by denying access to its property to persons
their property and regulate those who wish to use it. See           employed by Petitioner at another facility owned by
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.              Petitioner.
419, 435 (1982). Moreover, the right to exclude others is
“one of the most essential strands in the bundle of rights that
are commonly characterized as property.” Nollan v.
California Coastal Comm’n, 483 U.S. 825, 831 (1987)
(quotations omitted). The Court has described a property
owner’s right to exclude as one of the most “treasured”
aspects of property rights. Loretto, 458 U.S. at 435.
  Petitioner has a fundamental property right to exclude
others from its property. See Babcock, 351 U.S. at 112. The
exercise of the property right to exclude others falls within the
scope of state trespass law. Sears, Roebuck & Co. v. San
Diego Dist. Council of Carpenters, 436 U.S. 180, 181

                                                                         2
                                                                          The Court in Sears noted that private property rights yield to section
                                                                    7 rights only in “cases involving unique obstacles to nontresspassory
                                                                    methods of communication with the employees.” 436 U.S. at 205-06
                                                                    n.41.
