United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 23, 2001 Decided June 5, 2001
No. 00-1296
ITT Industries, Inc.,
Petitioner
v.
National Labor Relations Board,
Respondent
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW,
Intervenor
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
Richard B. Hankins argued the cause for petitioner. With
him on the brief were Curtis L. Mack and Robert D. Harris.
Anna L. Francis, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the
brief were John H. Ferguson, Associate General Counsel,
Aileen A. Armstrong, Deputy Associate General Counsel, and
Frederick L. Cornnell, Jr., Attorney.
Lynn K. Rhinehart argued the cause for intervenor Inter-
national Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America. With her on the brief
were James B. Coppess and Blair Kay Simmons. Merrill J.
Whitman entered an appearance.
Before: Edwards, Chief Judge, Williams and Sentelle,
Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge: Petitioner ITT Automotive manu-
factures automotive parts at ten different plants across the
Midwest, Arkansas, and New York. The present action
involves the so-called "Northern Plants," three facilities locat-
ed within a twenty-mile radius of one another in northeast
Michigan. The Oscoda plant is the largest, with nearly 650
employees, while the Tawas and East Tawas plants each
employ roughly 180 workers. During the relevant times at
issue in this case, the International Union, United Automo-
bile, Aerospace and Agricultural Implement Workers of
America ("UAW" or "Union"), was seeking to organize the
employees at the Northern Plants. ITT and the UAW stipu-
lated that the three plant facilities, together, constituted a
single, appropriate bargaining unit for purpose of the repre-
sentation election.
The unfair labor practice charges at issue arose in the
midst of the Union's organization campaign. On two different
occasions, employees from the Oscoda plant attempted to
handbill in the East Tawas parking lot. Both times, East
Tawas supervisors ordered them to leave under threat of
arrest for trespass. The National Labor Relations Board
("NLRB" or "Board") found that management's enforcement
of a no-access policy to union organizing by off-site employees
constituted a violation of s 8(a)(1) of the National Labor
Relations Act ("NRLA").
ITT argues that the Board overstepped its authority by
extending greater access rights to off-site employees than
those afforded nonemployee union organizers. Specifically,
petitioner contends that the Supreme Court's access cases
make clear that "trespassers," whether nonemployee union
organizers or off-site employees, possess only limited deriva-
tive s 7 access rights, i.e., that any such rights derive entirely
from on-site employees' s 7 organizational right to receive
union-related information.
It is not clear that the Supreme Court's access cases
foreclose the Board's interpretation that s 7 confers upon off-
site employees some measure of free-standing, nonderivative
organizational access rights. The Court's cases do make
clear, however, that the Board must take account of an off-
site employee's trespasser status. In the present case, the
Board utterly failed to bring that consideration to bear, first,
in its decision that s 7 extended any nonderivative access
rights to off-site employees and, second, in its determination
that the scope of those rights be defined by the same balanc-
ing test used to assess the scope of on-site employee access
rights. We therefore vacate the Board's decision and remand
for further consideration.
In a separate incident, East Tawas management repri-
manded long time employee and union member Karen Rich-
ardson for harassing fellow workers with union solicitations
during worktime. The Board found that management had
violated s 8(a)(1) by discriminatorily applying the plant's
facially neutral no-solicitation policy to union-related activity.
The Board's decision on this point is supported by substantial
evidence.
I. Background
In early 1998, the UAW, intervenor in this case, com-
menced an organizing campaign to unionize the nonsuperviso-
ry employees at the Northern Plants. The Union subse-
quently filed an election petition in June, and the Board
scheduled a representation election for July 30, 1998. ITT
and the UAW stipulated to an election covering a unit consist-
ing of nonsupervisory employees from all three plants. With
less than a week to go before the election, the UAW withdrew
the petition. By that point in time, the unfair labor practice
charges at the heart of this case had already been filed.
A. Restrictions on Oscoda Employee Handbilling in the
East Tawas Parking Lot
On April 28, 1998 and again on May 14, 1998, employees
from the Oscoda plant entered the East Tawas parking lot in
order to distribute Union literature and solicit signatures for
the Union organizing petition. Despite the fact that the
handbillers identified themselves as ITT employees from the
Oscoda plant, supervisors from the East Tawas plant request-
ed them to leave the premises because they were trespassing
on private property. The handbilling employees left without
incident. Shortly thereafter the UAW filed unfair labor
practice charges with the Board, alleging that management's
application of the no-access policy to off-site employees violat-
ed s 8(a)(1) of the NLRA.
At a hearing before an Administrative Law Judge ("ALJ"),
petitioner presented evidence that its no-access policy was
both neutral and justified. East Tawas supervisor Jeff Min-
nick testified that management had instigated the zero-
tolerance, no-access policy in March 1998 following installa-
tion of a six-foot high cyclone fence around the parking lot.
The new zero-tolerance policy limited parking lot access at all
times solely to East Tawas employees. There was one excep-
tion: relatives or friends of employees could enter the park-
ing lot to pick up/drop off East Tawas employees as long as
they did not exit their vehicles. Minnick cited a number of
precipitating events as grounds for the stricter policy, includ-
ing several acts of automobile vandalism, youths driving
through the parking lot at night, nonemployees engaging
employees in fights after work, and one incident in which an
estranged husband of an East Tawas employee threatened to
bring a gun to the plant in search of his wife.
The ALJ was unpersuaded by ITT's evidence. Quoting
Tri-County Medical Center, Inc., 222 N.L.R.B. 1089 (1976),
the ALJ noted that, " 'except where justified by business
reasons, a rule which denies off-duty employees entry to
parking lots, gates, and other outside nonworking areas will
be found invalid.' " ITT Industries, Inc., 331 N.L.R.B. No. 7,
at 4 (May 10, 2000) ("Board Decision") (quoting Tri-County,
222 N.L.R.B. at 1089). The ALJ was not impressed by the
fact that the handbillers were not only off-duty, but also off-
site, employees, remarking that "employees of the employer
who work at one plant are still considered employees of the
employer if they handbill at another of the employer's
plants." Board Decision, at 4 (citing S. Cal. Gas Co., 321
N.L.R.B. 551 (1996), and U.S. Postal Serv., 318 N.L.R.B. 466
(1995)). Moreover, Oscoda and East Tawas employees be-
longed to the same representational unit. Board Decision, at
4.
Having found that the Tri-County test applied, the ALJ
refused to consider ITT's evidence of reasonable alternative
means available to the Oscoda handbillers for communicating
with East Tawas employees. Id. As to the proffered justifi-
cations for applying the policy to off-site employees, the ALJ
found ITT's reasons to be "woefully inadequate," and belied
by the policy of permitting entry to friends and spouses to
pick up or drop off East Tawas employees. Id. The Board
affirmed the ALJ's decision, and ordered management at the
Northern Plants to grant parking-lot access to off-site em-
ployees for the purpose of distributing union materials.
B. Reprimanding Karen Richardson for Union Solicitation
during Worktime
On May 7, 1998, East Tawas plant manager Rod Kaschner
and supervisor Jeff Binder called ten-year East Tawas em-
ployee and active union member Karen Richardson into Kas-
chner's office. Richardson memorialized the exchange in a
letter to Kaschner of same date:
Rod asked me to sit down. He then said he has had a
few people on the floor complaining to him about me
talking about union related activities and union informa-
tion to them and they were offended. He told me then
that any more conversations about the union were to be
kept outside, in the lunch room and on my off time. He
said I wasn't to be talking about the union on the floor
any more to anyone.
Letter from Karen Richardson to Rod Kaschner (May 7,
1998) (emphasis added). Kaschner responded with his own
letter the following day, in which he agreed with Richardson's
description. He added only that "[t]he point again of the
whole meeting was if an individual is not interested in talking
with you about union activities, you should respect their
wishes and avoid such discussions." Letter from Rod Kas-
chner to Karen Richardson (May 8, 1998). The Union filed
an unfair labor practice charge with the Board alleging that
East Tawas management had discriminatorily applied the
plant's worktime no-solicitation policy to union solicitations in
violation of Section 8(a)(1) of the NLRA.
Relying on the above letters as well as testimony from
Richardson that she suffered no punishment and had re-
sumed union solicitation on the floor after a mere seven days,
the ALJ found that "the Act was [not] violated because
management was essentially telling Richardson not to bother
her fellow employees ... and I see at most a de minimus or
insignificant infringement on Karen Richardson's Section 7
rights." Board Decision, at 5. The Board disagreed.
The Board acknowledged that ITT's no-solicitation rule was
valid on its face, inasmuch as it prohibited all solicitations of
any kind by any employee during worktime. Id. at 1 (quoting
ITTA Northern Plants Fluid Handling Employee Handbook
31). In practice, however, the Board found that East Tawas
management did not enforce the rule, letting employees and
managers talk about a variety of subjects and engage in a
number of solicitation activities at their work stations. Ac-
cording to the Board, Kaschner's and Binder's May 7 admoni-
tion "not to engage in any discussion of the Union with any
employee on the production floor" constituted impermissible
disparate treatment. Board Decision, at 2. The Board
rejected the suggestion that the violation was somehow de
minimus and ordered management to post notice that it
would cease disparate enforcement of the neutral no-
solicitation policy. Id.
This petition for review of both s 8(a)(1) violations fol-
lowed.
II. Analysis
Section 7 of the NLRA guarantees employees "the right to
self-organization, to form, join, or assist labor organizations."
29 U.S.C. s 157 (1994). Section 8(a)(1) makes it an "unfair
labor practice" for an employer "to interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed in
[Section 7]." 29 U.S.C. s 158(a)(1).
A. Parking Lot Access of Off-Site Employees
For nearly fifty years, it has been black-letter labor law
that the Board cannot order employers to grant nonemployee
union organizers access to company property absent a show-
ing that on-site employees are otherwise inaccessible through
reasonable efforts. NLRB v. Babcock & Wilcox Co., 351 U.S.
105, 112 (1956); see also Lechmere, Inc. v. NLRB, 502 U.S.
527, 534 (1992); Lucile Salter Packard Children's Hosp. at
Stanford v. NLRB, 97 F.3d 583, 587 (D.C. Cir. 1996). It is
likewise well-established that the Board has the authority,
under Section 8(a)(1) of the NLRA, to prevent employers
from posting parking lots against off-duty employees unless
the employer presents valid business justifications for the
restriction. See Tri-County, 222 N.L.R.B. at 1089 (setting
forth test); see also NLRB v. S. Md. Hosp. Ctr., 916 F.2d
932, 939-40 (4th Cir. 1990) (relying on Tri-County test to
affirm Board's determination that no-access policy constituted
unfair labor practice because "limited neither to nonemploy-
ees nor to the interior of the hospital"); NLRB v. Ohio
Masonic Home, 892 F.2d 449, 453 (6th Cir. 1989) (affirming
Board's application of Tri-County test to invalidate no-access
policy applied to off-duty employees); NLRB v. Pizza Crust
Co. of Pa., 862 F.2d 49, 52-55 (3d Cir. 1988) (same). ITT
maintains that the Board overstepped its bounds by applying
the Tri-County test off-the-rack to off-site employees, who, it
argues, possess no greater s 7 access rights than are afford-
ed nonemployee union organizers under the Babcock doctrine.
"Like other administrative agencies, the NLRB is entitled
to judicial deference when it interprets an ambiguous provi-
sion of a statute that it administers." Lechmere, 502 U.S. at
536 (1992) (citing Chevron U.S.A. Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 842-43 (1984)). Section 7 does
not itself speak of access rights, much less the access rights
of off-site employees. Such statutory silence would generally
counsel Chevron deference. However, once courts have set-
tled on a statute's clear meaning, " 'we adhere to that deter-
mination under the doctrine of stare decisis, and we judge an
agency's later interpretation of the statute against [the] prior
determination of the statute's meaning.' " Lechmere, 502
U.S. at 536-37 (quoting Maislin Indus., U.S., Inc. v. Primary
Steel, Inc., 497 U.S. 116, 131 (1990)). With this principle in
mind, we turn to prior judicial interpretation of s 7 access
rights.
No court has decided the specific question we face here,
i.e., the scope of the Board's authority under ss 7 and 8(a)(1)
to prevent employers from prohibiting parking lot access to
off-site employees who are seeking to engage in organization-
al activities that would be lawful if pursued by on-site employ-
ees. ITT asserts, however, that the Supreme Court's s 7
access cases compel application of the Babcock test, rather
than the Tri-County test, in such situations. Despite the fact
that Babcock, and more recently Lechmere, speak formally of
the differing access rights guaranteed "employees" versus
"nonemployees," ITT maintains that the two cases in actuality
establish a functional distinction between the access rights
guaranteed "invitees" versus "trespassers." In other words,
ITT contends that, because "nonemployee" in the Babcock
formulation is merely a proxy for "trespasser," the Board's
application of the Tri-County test to trespassing off-site
employees runs afoul of Chevron step one. We do not agree
that the Court's decisions are so clear.
Babcock was itself a response to the Board's then-policy of
assessing all parking-lot no-access rules under the same
balancing test, regardless of whether the rule barred access
of employees or nonemployee union organizers. Though the
Court acknowledged the deference normally owed the Board,
it nonetheless faulted the Board for "fail[ing] to make a
distinction between rules of law applicable to employees and
those applicable to nonemployees." Babcock, 351 U.S. at 112
(emphasis added). Calling the distinction "one of substance,"
the Court held:
No restriction may be placed on the employees' right to
discuss self-organization among themselves, unless the
employer can demonstrate that a restriction is necessary
to maintain production or discipline. But no such obli-
gation is owed nonemployee organizers. Their access to
company property is governed by a different consider-
ation. The right of self-organization depends in some
measure on the ability of employees to learn the advan-
tages of self-organization from others. Consequently, if
the location of a plant and the living quarters of the
employees place the employees beyond the reach of
reasonable union efforts to communicate with them, the
employer must allow the union to approach his employ-
ees on his property.
Id. at 113 (citations omitted). In other words, nonemployees'
access rights are merely derivative of on-site employees'
organizational rights; nonemployees enjoy no independent,
free-standing s 7 right of access. See Sears, Roebuck & Co.
v. San Diego County Dist. Council of Carpenters, 436 U.S.
180, 206 n.42 (1978). Though the Court did not explicitly
contemplate the problem of the trespassing off-site employee,
it did note that "[o]rganization rights are granted to workers
by the same authority, the National Government, that pre-
serves property rights. Accommodation between the two
must be obtained with as little destruction of one as is
consistent with the maintenance of the other." Babcock, 351
U.S. at 112.
The Court revisited Babcock twenty years later in Hudgens
v. NLRB, 424 U.S. 507 (1976). Union member warehouse
employees of Butler Shoe Company had gone on strike. In
addition to picketing the warehouse where they actually
worked, the strikers targeted Butler's nine Atlanta-area retail
stores, including one inside the North DeKalb Shopping
Center. The general manager of the shopping center threat-
ened arrest for trespass, after which the union filed unfair
labor practice charges. The Board agreed with the union,
and the Fifth Circuit affirmed because the mall's interior no-
picketing policy violated the First Amendment.
The Court reversed on the First Amendment ground,
holding instead that "the rights and liabilities of the parties in
this case are dependent exclusively upon the National Labor
Relations Act." Id. at 521. Though the Court ordered
remand to allow the Board to decide the s 7 question in the
first instance, it described the task facing the Board as
follows:
The Babcock & Wilcox opinion established the basic
objective under the Act: accommodation of s 7 rights
and private property rights "with as little destruction of
one as is consistent with the maintenance of the other."
The locus of that accommodation, however, may fall at
differing points along the spectrum depending on the
nature and strength of the respective s 7 rights and
private property rights asserted in any given context.
In each generic situation, the primary responsibility for
making this accommodation must rest with the Board in
the first instance.
Id. at 522 (quoting Babcock, 351 U.S. at 112) (emphasis added
and citations omitted).
The Court equivocated on the proper scope of off-site
employee s 7 access rights. Describing the Board's task on
remand from Hudgens, the Court acknowledged that the
underlying facts differed from those in Babcock "in several
respects which may or may not be relevant in striking the
proper balance," including that the alleged trespass "was
carried on by Butler's employees (albeit not employees of its
shopping center store), not by outsiders." Hudgens, 424 U.S.
at 522. On the other hand, the Court hinted that access
rights might depend on one's status as a trespasser or invitee.
Distinguishing Babcock from Republic Aviation Corp. v.
NLRB, 324 U.S. 793 (1945), an earlier case in which the Court
had affirmed a Board ruling that an employer may not
prohibit distribution of organizational literature by employees
in nonworking areas during nonwork time absent a showing
that the ban was necessary to maintain plant discipline or
production, the Court remarked: "A wholly different balance
was struck when the organizational activity was carried on by
employees already rightfully on the employer's property,
since the employer's management interests rather than his
property interests were there involved." Hudgens, 424 U.S.
at 521-22 n.10.
In Eastex, Inc. v. NLRB, 437 U.S. 556 (1978), the Court
again addressed the invitee/trespasser distinction. The un-
derlying facts in Eastex resembled those of Republic Avia-
tion-the employer had prohibited employees from distribut-
ing a union newsletter in nonworking areas during nonwork
time. The Board ruled that the prohibition constituted an
unfair labor practice, because the employer had failed to
demonstrate sufficiently special circumstances to justify the
ban. The Fifth Circuit affirmed. In upholding the Board's
decision, the Court explained the underlying concerns driving
the different outcomes in Babcock and Republic Aviation:
In Babcock & Wilcox, ... nonemployees sought to enter
an employer's property to distribute union organizational
literature. The Board applied the rule of Republic Avia-
tion in this situation, but the Court held that there is a
distinction "of substance" between "rules of law applica-
ble to employees and those applicable to nonemployees."
The difference was that the nonemployees in Babcock &
Wilcox sought to trespass on the employer's property,
whereas the employees in Republic Aviation did not.
Striking a balance between s 7 organizational rights and
an employer's right to keep strangers from entering on
its property, the Court held that the employer in Bab-
cock & Wilcox was entitled to prevent "nonemployee
distribution of union literature [on its property] if reason-
able efforts by the union through other available chan-
nels of communication will enable it to reach the employ-
ees with its message."
Eastex, 437 U.S. at 571 (quoting Babcock, 351 U.S. at 112,
113) (emphasis added and citations omitted).
Following Eastex and seizing on the Court's balancing
language from Hudgens, the Board in 1988 reformulated its
approach to no-access policies, once again adopting a single
balancing test for assessing the validity of no-access policies
generally, whether enforced against employees or nonemploy-
ees. See Jean Country, 291 N.L.R.B. 11, 14 (1988) ("[I]n all
access cases our essential concern will be the degree of
impairment of the Section 7 right if access should be denied,
as it balances against the degree of impairment of the private
property right if access should be granted. We view the
consideration of the availability of reasonably effective alter-
native means as especially significant in this balancing pro-
cess."). When the Board applied this test to strike down an
employer's application of its parking-lot no-access policy to
nonemployee union organizers, the Court in Lechmere inter-
vened.
Noting that "[b]y its plain terms, ... the NLRA confers
rights only on employees, not on unions or their nonemployee
organizers," Lechmere, 502 U.S. at 532, the Court recast
Babcock in Chevron terms:
In Babcock, ... we held that the Act drew a distinction
"of substance" between the union activities of employees
and nonemployees. In cases involving employee activi-
ties, we noted with approval, the Board "balanced the
conflicting interests of employees to receive information
on self-organization on the company's property from
fellow employees during nonworking time, with the em-
ployer's right to control the use of his property." In
cases involving nonemployee activities (like those at issue
in Babcock itself), however, the Board was not permitted
to engage in that same balancing (and we reversed the
Board for having done so). By reversing the Board's
interpretation of the statute for failing to distinguish
between the organizing activities of employees and non-
employees, we were saying, in Chevron terms, that s 7
speaks to the issue of nonemployee access to an employ-
er's property. Babcock's teaching is straightforward:
s 7 simply does not protect nonemployee union organiz-
ers except in the rare case where "the inaccessibility of
employees makes ineffective the reasonable attempts by
nonemployees to communicate with them through the
usual channels."
Id. at 537 (quoting Babcock, 351 U.S. at 109-10, 112, 113)
(citations omitted). The Court thus reaffirmed Babcock's
central thesis that s 7 extends only derivative access rights to
nonemployee union organizers. The union itself, untethered
to a threshold claim that s 7 employee organizational rights
had been infringed, could not claim protection.
Lechmere and the Court's cases leading up to it simply do
not answer the question before us. The Court never has
professed to define the scope of the term "employee" in
Babcock, Hudgens, Republic Aviation, Eastex, or Lechmere.
And these cases certainly do not stand for the proposition
that all trespassers, whether they be nonemployee union
organizers or off-site employees, possess only derivative s 7
access rights. Because the Court's cases do not bespeak a
clear answer, and because the statute is silent on the point,
we must defer to the Board's interpretation if reasonable.
Before assessing the reasonableness of the Board's inter-
pretation, we pause to consider the significance of the Elev-
enth Circuit's decision in Southern Services, Inc. v. NLRB,
954 F.2d 700 (11th Cir. 1992). There, Coca-Cola had en-
forced a no-access policy against an employee of a janitorial
subcontractor who serviced Coca-Cola's secured industrial
complex in Atlanta. The complex was "the only common
workplace of the approximately 165 [subcontractor] employ-
ees who provide janitorial services to Coca-Cola under sub-
contract." Id. at 701. The Board ruled against Coca-Cola,
despite the fact that the subcontractor's employees were
technically "nonemployees" vis-A-vis Coca-Cola. The Elev-
enth Circuit affirmed, reasoning that:
Babcock & Wilcox suggests two different routes for
analyzing employer rights, which now diverge under this
case's facts. Babcock & Wilcox implied that employers
may restrict distribution by nonemployee organizers for
the reason that those organizers are trespassers. Yet
the holding addressed the section 7 rights of nonemploy-
ees-a category of persons who are not necessarily tres-
passers on the employer's premises. But dicta in the
Supreme Court's post-Babcock & Wilcox cases indicate
that it is the organizer's status as a trespasser or strang-
er to the employee's property, rather than the nonem-
ployee status, that invokes the employer's property right
to restrict premises distribution by the organizer.
Id. at 703 (citations omitted).
Of course that decision as the opinion of another circuit is
not binding here. Moreover, Southern Services issued only
one month after Lechmere and contains no reference to the
Supreme Court's decision. The Eleventh Circuit's opinion
thus has limited persuasive value-it does not account for
Lechmere's express reaffirmation of the employee/nonemploy-
ee distinction, particularly its reliance on statutory mention of
the term "employee." In any event, nothing in Southern
Services is dispositive of the issue before us in this case.
When it is unclear under established law whether a catego-
ry of workers enjoys free-standing, nonderivative access
rights, then a court is obliged to defer to reasonable judg-
ments of the Board in its resolution of cases that have not as
yet been resolved by the Supreme Court. We have no doubt
that the Board could attempt a justification within the bounds
of Babcock, Hudgens, and Lechmere for why s 7 guarantees
on-site subcontractor employees-like the SSI janitors at Coca
Cola-nonderivative access rights similar to those enjoyed by
on-site employees of the firm owning the site. Obviously, this
is not a question before us. We make the point only to say
that the Board, in the first instance under Chevron step two,
must be allowed to define the limits of the NLRA in assessing
the legality of no-access, no-solicitation rules not yet consid-
ered by the Supreme Court.
Although the Court's access cases do not foreclose the
possibility that off-site employees might enjoy some measure
of free-standing, nonderivative access rights, they do make
clear that the reasonableness of such an interpretation de-
pends in large part on the Board's considered justifications
for extending greater access rights to trespassing employees
than trespassing nonemployee union organizers. "In deter-
mining whether an agency's interpretation represents a rea-
sonable accommodation of conflicting statutory purposes, a
reviewing court must determine both whether the interpreta-
tion is arguably consistent with the underlying statutory
scheme in a substantive sense and whether 'the agency
considered the matter in a detailed and reasoned fashion.' "
Rettig v. Pension Benefit Guar. Corp., 744 F.2d 133, 151
(D.C. Cir. 1984) (quoting Chevron, 467 U.S. at 865). With
this principle in mind, we simply cannot assess the reason-
ableness of the Board's decision to apply the Tri-County test
to off-site employees in the present case.
First, the Board failed even to acknowledge that the ques-
tion of off-site employee access rights was an open one, i.e.,
that, in Chevron terms, s 7 and the Court's cases are silent
on the issue. Rather, the Board decided sub silentio that s 7
guarantees all off-site employees, whether members of the
same bargaining unit or not, some measure of free-standing,
nonderivative access rights. See Board Decision, at 4
("[E]mployees of the employer who work at one plant are still
considered employees of the employer if they handbill at
another of the employer's plants."). Indeed, by applying the
Tri-County balancing test, the Board decided without analy-
sis that trespassing off-site employees possess access rights
equivalent to those enjoyed by on-site employee invitees.
Because it is by no means obvious that s 7 extends nonderi-
vative access rights to off-site employees, particularly given
the considerations set forth in the Court's access cases, the
Board was obliged to engage in considered analysis and
explain its chosen interpretation.
At oral argument, Government counsel insisted that the
Board had already provided such an explanation in its prior
off-site employee access cases and should not be required to
repeat its justifications here. See Eagle-Picher Industries,
Inc., 331 N.L.R.B. No. 14 (May 19, 2000); S. Cal. Gas Co.,
321 N.L.R.B. 551 (1996); U.S. Postal Serv., 318 N.L.R.B. 466
(1995). The Government is certainly correct that the Board
is not obligated to justify its interpretation anew with every
application if it has done so adequately in a previous decision.
None of the Board's previous cases, however, take any ac-
count of the Court's different access decisions or the trespass
considerations articulated therein. Indeed, the most exten-
sive treatment of the interpretive question can be found in
United States Postal Service, 318 N.L.R.B. at 467. Rejecting
arguments that the Babcock test rather than the Tri-County
test should apply to off-site employees, the Board stated only:
No case has been cited which would warrant the distinc-
tion which Respondent proposes. In the instant case
Respondent's employees enjoy the same benefits and
working conditions regardless of the facility at which
they work. For example, vacation benefits accrue in the
same manner and rate regardless of an employee's as-
signed facility. Years of employment are counted toward
an employee's pension from the day the employee is
hired to the day he or she retires, regardless of which
facility he or she is assigned to. In addition, an employ-
ee who is involuntarily transferred from one postal facili-
ty to another maintains his or her seniority regardless of
the change of facility. In Nashville Plastic Products,
supra, the Board recognized that "the rule enunciated in
Lechmere does not apply to employees." No distinction
was made as to whether an employee worked at any
particular facility. In addition, in Tri-County, supra, the
Board prohibited a rule which denied off-duty employees
entry to parking lots, gates, and other outside nonwork-
ing areas. Again, no distinction was made as to whether
the off-duty employee worked at any particular facility.
Accordingly, I believe that the rule enunciated in Tri-
County Medical Center, supra, is controlling in the in-
stant proceeding.
Id. Noticeably absent from this discussion is any mention of
the employer's property rights or the different interpretive
considerations presented by trespassing employees. There is
certainly no consideration of the degree to which extending
nonderivative access rights to off-site employees might in-
trude upon state trespass laws. See Sears, Roebuck & Co.,
436 U.S. at 205 (holding that NLRA, as interpreted in Bab-
cock, did not preempt state trespass laws in part because
"permitting state courts to evaluate the merits of an argu-
ment that certain trespassory activity is protected does not
create an unacceptable risk of interference with conduct
which the Board, and a court reviewing the Board's decision,
would find protected. For while there are unquestionably
examples of trespassory union activity in which the question
whether it is protected is fairly debatable, experience under
the Act teaches that such situations are rare and that a
trespass is far more likely to be unprotected than protected").
Moreover, many of the organizational considerations cited by
the Board are situation-specific and would not justify the
general rule adopted here. We therefore vacate the Board's
decision and remand for the Board to consider and craft its
interpretation in light of these concerns.
Second, even were we here to find reasonable the Board's
decision to read into s 7 some measure of free-standing,
nonderivative access rights for off-site employees, the Board
nevertheless failed to explain why the scope of such rights
should be defined by the same Tri-County balancing test
used to delineate the scope of on-site employee access rights.
Lechmere makes clear that, even as to on-site employees, the
Board must balance the conflicting interests of employees to
receive information on self-organization on the company's
property from fellow employees during nonwork time with
the employer's right to control the use of his property. See
Lechmere, 502 U.S. at 534.
It is obvious that the interests of employees located on a
single employer site do not always coincide with the collective
interests of employees located on several different sites.
Indeed, this may be so even when employees on different
sites are part of a single representational unit. The "bal-
ance" of conflicting interests may change dramatically when
"employees" are widely dispersed at different employer loca-
tions, both because the employees' interests and working
arrangements may be dissimilar and also because the employ-
er's right to control the disputed premises likely implicates
security, traffic control, personnel, and like issues that do not
arise when only on-site employee access is involved. If, on
remand, the Board determines that s 7 indeed extends non-
derivative access rights to off-site employees, it must then
adopt a balancing test that takes proper account of an em-
ployer's predictably heightened property concerns.
B. Disparate Application of No-Solicitation Rule
We need not pause long over the Board's determination
that East Tawas management committed an unfair labor
practice in reprimanding Karen Richardson. "Even if the
court might have reached a different conclusion had the court
considered the issue de novo, the court will uphold the
Board's decision if it is supported by substantial evidence in
the record." Frazier Indus. Co. v. NLRB, 213 F.3d 750, 756
(D.C. Cir. 2000).
Petitioner argues that, in reprimanding Richardson, man-
agement was simply applying a facially neutral no-solicitation
policy. That is beside the point. Though facially neutral
restrictions on worktime solicitations in work areas are pre-
sumptively valid, an employer commits an unfair labor prac-
tice when it applies the rule in non-neutral fashion to union
activities. See Restaurant Corp. of Am. v. NLRB, 827 F.2d
799, 804-05 (D.C. Cir. 1987). The Board found that East
Tawas management had not traditionally enforced the rule,
allowing "employees and managers to talk about various
subjects while at their work stations as long as it did not
interfere with production and to engage in a variety of
solicitation activities, usually for some charitable cause."
Board Decision, at 1. Substantial evidence supports this
finding. See Transcript of ALJ Hearing ("Tr.") at 115-18
(testimony of Karen Richardson) (testifying as to various
charitable solicitation drives conducted during worktime); Tr.
at 100-02 (testimony of Karen Richardson) (testifying that
supervisors often talk about nonwork-related issues with em-
ployees on the floor).
Conceding that the evidence might support a finding that
East Tawas management generally tolerates worktime solici-
tations, petitioner argues that management has never main-
tained a policy of allowing harassing solicitations, such as
that attributed to Richardson. We agree that substantial
evidence would not support a finding that management gener-
ally tolerates solicitations in the face of harassment com-
plaints. Indeed, Richardson herself testified that, despite
often talking about the Union on the floor with fellow employ-
ees, this was the only time she had ever been reprimanded
for doing so. See Tr. at 123-24.
Petitioner's argument nonetheless misses the crucial point.
The Board took issue with the fact that "Kaschner and
Binder responded [to the complaints] by warning Richardson
on May 7 not to engage in any discussion of the Union with
any employee on the production floor." Board Decision, at 2.
In other words, the warning was both impermissibly over-
broad, in that it required her to cease Union discussion with
other employees altogether rather than simply those express-
ing discomfort, and impermissibly underbroad, in that it
required her to cease Union-related discussions only. Rich-
ardson's uncontroverted letter, the correctness of which Kas-
chner conceded in his response of the following day, constitut-
ed substantial evidence in support of the Board's finding of
discriminatory over- and underbreadth. See Letter from
Karen Richardson to Rod Kaschner.
Conclusion
We deny ITT's petition for review of the s 8(a)(1) violation
pertaining to the disparate application of the disputed no-
solicitation rule. However, we vacate the Board's determina-
tion that ITT committed an unfair labor practice by applying
its no-access policy to off-site handbilling employees and
remand to the Board for further proceedings consistent with
this opinion.
So ordered.