ITT Industries, Inc. v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 12, 2005 Decided June 28, 2005

No. 04-1172

ITT INDUSTRIES, INC.,
PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,
RESPONDENT

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE &
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA,
AFL-CIO,
INTERVENOR

Consolidated with
04-1198

On Petition for Review and Cross-Application for
Enforcement
of an Order of the
National Labor Relations Board

Curtis L. Mack argued the cause for petitioner. With him
on the briefs were Mark L. Keenan and Brennan W. Bolt.
 2

Anne M. Lofaso, Attorney, National Labor Relations Board,
argued the cause for respondent. With her on the brief were
Arthur F. Rosenfeld, General Counsel, John H. Ferguson,
Associate General Counsel, Aileen A. Armstrong, Deputy
Associate General Counsel, and Linda Dreeben, Assistant
General Counsel.

James B. Coppess argued the cause for intervenor. With
him on the brief were Lynn K. Rhinehart and Blair K. Simmons.

Before: RANDOLPH, GARLAND, and ROBERTS, Circuit
Judges.

Opinion for the court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: The National Labor Relations
Board determined that ITT Industries, Inc. violated section
8(a)(1) of the National Labor Relations Act when it refused to
permit employees from one ITT plant to distribute pro-union
handbills in the parking lot of another ITT facility. ITT petitions
for review of that decision. Because we conclude that the Board
reasonably interpreted the Act, we deny the petition and grant
the Board’s application for enforcement of its order.

I

ITT Industries, Inc. is the parent company of ITT
Automotive, Inc., an automotive parts manufacturer that
operates ten plants, three of which are located in East Tawas,
Tawas City, and Oscoda, Michigan. These are known
collectively as the “Northern Plants,” and each is within a short
commuting distance of the others. ITT Industries, Inc., 341
N.L.R.B. No. 118, at 1 n.4 (May 13, 2004). The East Tawas
facility (the site of the handbilling in this case) is situated
between the other two, 14 miles from the Oscoda facility (the
 3

plant at which the handbillers are employed) and 5-6 miles from
the Tawas City facility. Id. at 1. The East Tawas and Tawas
City plants have about 180 employees each, while the Oscoda
plant has about 600 employees. Id. ITT has from time to time
transferred employees from one plant to another. Id. at 1 & n.5.

In 1994, the International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America
(UAW) launched a campaign to organize employees of the
Northern Plants. It lost a representation election in March 1995,
but the National Labor Relations Board (NLRB) found that ITT
had improperly interfered with the election and set aside the
results. In early 1998, the union remounted its organizing drive.
It filed an election petition in June, and the Board scheduled a
representation election for July 1998. ITT stipulated that the
appropriate bargaining unit would encompass nonsupervisory
employees from all three plants. See ITT Industries, Inc., 331
N.L.R.B. 4, 6 (2000) (First ITT Decision).1

In the spring of 1998, employees of ITT’s Oscoda plant
twice attempted to distribute handbills and to solicit signatures
in the parking lot of the East Tawas facility. Both incidents
occurred at approximately 6:00 a.m. Although the handbillers
identified themselves as ITT employees from the Oscoda plant,
East Tawas supervisors ordered them to leave or face arrest for
trespass. Each time, the handbillers left without incident.

Thereafter, the union filed unfair labor practice charges with
the NLRB, which an administrative law judge (ALJ) heard in
1999. To resolve the charge that ITT had wrongfully denied
access to its off-site employees, the ALJ used the NLRB’s test

1
Just prior to the date of the scheduled election, and after filing
the unfair labor practice charge that gave rise to this case, the UAW
withdrew its election petition.
 4

for evaluating employer restrictions on off-duty employees’
access to areas surrounding their own work sites. That test, set
forth in Tri-County Medical Center, provides: “[E]xcept 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.” 222 N.L.R.B. 1089,
1089 (1976). Applying that rubric, the ALJ found ITT’s
proffered business justifications inadequate and concluded that
ITT had violated section 8(a)(1) of the National Labor Relations
Act (NLRA). In 2000, the Board affirmed. See First ITT
Decision, 331 N.L.R.B. at 4.

ITT petitioned for judicial review, contending that the
Board had overstepped its authority by granting to off-site
employees more than the limited access rights of nonemployee
union organizers. The test applicable to the latter, as enunciated
in NLRB v. Babcock & Wilcox Co., provides that employers may
bar nonemployee union organizers from company property,
unless employees are otherwise “beyond the reach of reasonable
union efforts to communicate with them.” 351 U.S. 105, 113
(1956); see Lechmere, Inc. v. NLRB, 502 U.S. 527, 534 (1992).
Nonemployees’ access is so limited because “any right they may
have to solicit on an employer’s property is a derivative of the
right of that employer’s employees to exercise their organization
rights effectively.” Sears, Roebuck & Co. v. San Diego County
Dist. Council of Carpenters, 436 U.S. 180, 206 n.42 (1978). In
ITT’s view, the Board should have applied Babcock, not Tri-
County, to resolve the UAW’s charges.

This court reviewed the Board’s decision in ITT Industries,
Inc. v. NLRB, 251 F.3d 995, 1006-07 (D.C. Cir. 2001). We
noted that although the Supreme 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
 5

depends in large part on the Board’s considered justifications for
extending greater access rights to trespassing employees than
trespassing nonemployee union organizers.” Id. at 1004.
Because we concluded that the Board had failed -- in several
respects detailed in Part II below -- “to engage in considered
analysis and explain its chosen interpretation,” id., we vacated
the Board’s determination that ITT had committed an unfair
labor practice and remanded the case for further proceedings.

The NLRB initially addressed our concerns in First
Healthcare Corp., 336 N.L.R.B. 646 (2001) (Hillhaven), a case
that posed the same issues as our remand but reached the Board
first. The Board summarized its conclusions as follows:

(1) [U]nder Section 7 of the Act, offsite employees (in
contrast to nonemployee union organizers) have a
nonderivative access right, for organizational purposes,
to their employer’s facilities; (2) . . . an employer may
well have heightened private property-right concerns
when offsite (as opposed to onsite) employees seek
access to its property to exercise their Section 7 rights;
but (3) . . . on balance, the Section 7 organizational
rights of offsite employees entitle them to access to the
outside, nonworking areas of the employer’s property,
except where justified by business reasons, which may
involve considerations not applicable to access by
off-duty, onsite employees.

Id. at 648. The Sixth Circuit enforced the Board’s Hillhaven
order, concluding that the Board had remedied the deficiencies
identified in our ITT Industries opinion, and that it had
reasonably balanced the off-site employees’ section 7 rights
against the employer’s private property interests. First
Healthcare Corp. v. NLRB, 344 F.3d 523, 538, 539-40 (6th Cir.
2003).
 6

The NLRB applied the Hillhaven framework when it
considered our ITT Industries decision on remand in 2004. See
ITT Industries, Inc., 341 N.L.R.B. No. 118, at 4 (May 13, 2004)
(ITT Remand Decision). First, it determined that the Oscoda
employees had nonderivative section 7 rights because “the
offsite employees were seeking to organize the East Tawas
employees in a single, three-plant unit which included their own
Oscoda plant.” Id. Next, the Board examined ITT’s business
justification -- namely, physical and personal security -- for its
no-access policy. Id. at 5. Finally, the Board concluded that,
although “the record demonstrates that [ITT] had legitimate
security concerns, . . . these concerns do not justify the total
exclusion of [ITT’s] offsite employees from its parking lot.” Id.
Because the employer had thus “failed to present a business
reason sufficient to justify prohibiting [its off-site employees’]
access to the parking lot,” the Board reaffirmed its earlier
finding that ITT violated section 8(a)(1). Id. at 7.

In its petition for review, ITT raises essentially two points.
First, it contends that the NLRB’s Hillhaven test is unresponsive
to our remand and is an unreasonable interpretation of the
NLRA. Second, it argues that, even if the Hillhaven test is
proper, its application to the instant case was unreasonable and
unsupported by substantial evidence. We address the first point
in Part III and the second in Part IV. We begin, however, with
a more detailed discussion of the nature of our remand in ITT
Industries.

II

Section 7 of the NLRA provides that employees “shall have
the right to self-organization, [and] to form, join, or assist labor
organizations.” 29 U.S.C. § 157. Section 8(a)(1) declares that
it “shall be an unfair labor practice for an employer . . . to
interfere with, restrain, or coerce employees in the exercise of
 7

the rights guaranteed in” section 7. Id. § 158(a)(1). Under the
Act, “employee” is defined to “include any employee, and shall
not be limited to the employees of a particular employer.” Id. §
152(3).

“Like other administrative agencies, the NLRB is entitled
to judicial deference when it interprets an ambiguous provision
of a statute that it administers.” ITT Industries, 251 F.3d at 999
(quoting Lechmere, 502 U.S. at 536 (citing Chevron U.S.A. Inc.
v. NRDC, 467 U.S. 837, 842-43 (1984))). As we noted in ITT
Industries, section 7 is ambiguous -- for purposes of this case --
because it “does not itself speak of access rights, much less the
access rights of off-site employees.” Id. at 1000. That
ambiguity “counsel[s] Chevron deference” -- unless “courts
have settled on [the] statute’s clear meaning,” in which event we
must “adhere to that determination under the doctrine of stare
decisis.” Id. (quoting Lechmere, 502 U.S. at 536-37). And as
we further noted, the courts have not settled on the NLRA’s
clear meaning regarding the issues raised by the petitioner. To
the contrary, “[n]o court has decided the specific question we
face here, i.e., the scope of the Board’s authority under §§ 7 and
8(a)(1) to prevent employers from prohibiting parking lot access
to off-site employees who are seeking to engage in
organizational activities that would be lawful if pursued by on-
site employees.” Id.

Our decision in ITT Industries traced the two lines of
judicial opinions that leave the gap now confronting us. The
font of the first line was Republic Aviation Corp. v. NLRB, 324
U.S. 793 (1945). There, the Supreme Court affirmed the
NLRB’s ruling that an employer may not prohibit distribution of
organizational literature by off-duty employees in nonworking
areas, without a showing that the ban is necessary to maintain
plant discipline or production. See id. at 803 n.10, 804; see also
Eastex, Inc. v. NLRB, 437 U.S. 556, 570-71 (1978). The
 8

NLRB’s Tri-County balancing test followed from Republic
Aviation. See Tri-County, 222 N.L.R.B. at 1089 (relying on
Bulova Watch Co., 208 N.L.R.B. 798, 798 (1974), which
adopted the dissent’s interpretation of Republic Aviation in GTE
Lenkurt, Inc., 204 N.L.R.B. 921, 923 (1973)).

The second line of precedents began with Babcock, in
which the Supreme Court held that the Board cannot order
employers to grant nonemployee union organizers access to
company property, absent a showing that employees are
otherwise inaccessible through reasonable efforts. See Babcock,
351 U.S. at 112. There, the Court faulted the Board for
“fail[ing] to make a distinction between rules of law applicable
to employees and those applicable to nonemployees.” Id. at
113. As we explained in ITT Industries, Babcock stands for the
proposition that “nonemployees’ access rights are merely
derivative of on-site employees’ organizational rights;
nonemployees enjoy no independent, free-standing § 7 right of
access.” ITT Industries, 251 F.3d at 1000.

Continuing to trace the development of the two strands of
cases, see ITT Industries, 251 F.3d at 1001-02 (discussing
Hudgens v. NLRB, 424 U.S. 507 (1976), and Eastex, 437 U.S. at
571), we quoted the Supreme Court’s description of the two
lines in Lechmere:

In Babcock, . . . we held that the Act drew a distinction
“of substance” between the union activities of
employees and nonemployees. In cases involving
employee activities, we noted with approval, the Board
“balanced the conflicting interests of employees to
receive information on self-organization on the
company’s property from fellow employees during
nonworking time, with the employer’s right to control
the use of his property.” In cases involving
 9

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).

Id. at 1002 (quoting Lechmere, 502 U.S. at 537 (quoting
Babcock, 351 U.S. at 109-10, 113) (citations omitted)).
Lechmere, we said, “reaffirmed Babcock’s central thesis that §
7 extends only derivative access rights to nonemployee union
organizers.” Id. at 1002-03.

This foray into the case law persuaded us that Supreme
Court precedents “simply do not answer the question before us.”
Id. at 1003. After all, the “distinction ‘of substance’” discerned
in Lechmere and Babcock was “between the union activities of
employees and nonemployees,” Lechmere, 502 U.S. at 537, not
between those of on- and off-site employees:

The Court never has professed to define the scope of
the term “employee” in Babcock, Hudgens, Republic
Aviation, Eastex , or Lechmere. And these cases
certainly do not stand for the proposition that all
trespassers, whether they be nonemployee union
organizers or off-site employees, possess only
derivative § 7 access rights.

ITT Industries, 251 F.3d at 1003. Because “the Court’s cases
do not bespeak a clear answer, and . . . the statute is silent on the
point,” we concluded that “we must defer to the Board’s
interpretation if reasonable.” Id.

The problem with the Board’s order, however, was that “we
simply [could not] assess the reasonableness of the Board’s
decision to apply the Tri-County test to off-site employees.” Id.
at 1004. First, the Board had failed “even to acknowledge that
 10

the question of off-site employee access rights was an open
one,” but rather had “decided sub silentio that § 7 guarantees all
off-site employees . . . some measure of free standing,
nonderivative access rights.” Id. Second, “[n]oticeably absent
from [the Board’s] discussion [was] any mention of the
employer’s property rights or the different interpretive
considerations presented by trespassing employees.” Id. at
1005. On the one hand, the Board had failed to offer
“justifications for extending greater access rights to trespassing
employees than trespassing nonemployee union organizers.” Id.
at 1004. On the other, the Board had failed to consider the
“heightened property concerns” -- involving “security, traffic
control, personnel, and like issues” -- that arise when off-site
rather than on-site employees seek access. Id. at 1005. Finally,
the Board had also “failed to explain why the scope of [the off-
site employees’] rights should be defined by the same Tri-
County balancing test used to delineate the scope of on-site
employee access rights.” Id. We warned that “[i]f, on remand,
the Board determines that § 7 indeed extends nonderivative
access rights to off-site employees,” it would have to “adopt a
balancing test that takes proper account of an employer’s
predictably heightened property concerns” when off-site
employees are involved. Id.

It should be clear from this discussion that our decision in
ITT Industries did not bar the NLRB from concluding, on
remand, that off-site employees possess nonderivative section 7
rights to access outside, nonworking areas of their employer’s
property, or from adopting a test that rendered ITT’s no-access
policy an unfair labor practice. Rather, we merely concluded
that “the Board was obliged to engage in considered analysis
and explain its chosen interpretation.” Id. at 1004. We
cautioned, however, that if the Board chose to reaffirm its prior
decision, it would have to: (1) explain why it believes off-site
employees possess a nonderivative right of access under section
 11

7; (2) take into consideration the property interests of the
employer; and (3) devise a balancing test that accommodates an
employer’s heightened property concerns when the access of
off-site rather than on-site employees is at issue.

In the following Part, we consider whether the Board
satisfied these requirements of our remand, and whether the
balancing test it adopted represents a reasonable interpretation
of the NLRA.

III

In order to justify the approach it adopted in this case, the
NLRB may rely both on the explanation it offered in its remand
decision and on the more extensive rationale it set forth in
Hillhaven and incorporated into the remand decision. As we
said in ITT Industries, “the Board is not obligated to justify its
interpretation anew with every application if it has done so
adequately in a previous decision.” 251 F.3d at 1004. We
conclude that, taken together, Hillhaven and the remand decision
satisfactorily resolved the three deficiencies we identified in our
review of the Board’s initial ITT decision.

1. The first problem we discerned was the Board’s failure
to state whether, and if so why, off-site employees (unlike
nonemployee organizers) possess a nonderivative right of access
under section 7. The Board’s post-remand decisions at last
addressed the point directly, concluding that off-site employees
do “have a nonderivative access right, for organizational
purposes, to their employer’s facilities.” ITT Remand Decision,
341 N.L.R.B. No. 118, at 3 (quoting Hillhaven, 336 N.L.R.B. at
648). And the Board not only explained that conclusion, it did
so reasonably.
 12

As the Board stated in Hillhaven, off-site employees “are
not only ‘employees’ within the broad scope of Section 2(3) of
the Act, they are ‘employees’ in the narrow sense: ‘employees
of a particular employer’ (in the Act’s words), that is, employees
of the employer who would exclude them from its property.”
336 N.L.R.B. at 648. “Clearly, then, these workers are different
in important respects from persons who themselves have no
employment relationship with the particular employer.” Id.
Moreover, “when offsite employees seek to organize similarly
situated employees at another employer facility, the employees
seek strength in numbers to increase the power of their union
and ultimately to improve their own working conditions.” ITT
Remand Decision, 341 N.L.R.B. No. 118, at 3. This reasonably
explains the Board’s conclusion that the right claimed by such
off-site employees is personal rather than derivative: employees
who seek to make common cause with similarly situated
employees of the same employer are seeking to advance their
own interests -- not just those of the employees they target, as is
the case for nonemployee organizers. Thus, the “core concerns
of Section 7, which protects the ‘right to self-organization,’
undeniably are implicated.” Hillhaven, 336 N.L.R.B. at 649.

ITT objects to the Board’s reliance on this “own interests”
argument, contending that the Hillhaven test does not actually
require that the off-site employees and their on-site targets be
similarly situated before access can be compelled. Counsel for
the NLRB and UAW disagree, each insisting that similarity is a
threshold requirement of the test. See Oral Arg. Tape at 38:35-
39:21, 50:04-51:13. There is no question that there is a degree
of ambiguity in the text of Hillhaven, with some passages
making no mention of a similarity requirement, see, e.g., 336
N.L.R.B. at 650 (“[T]he Section 7 organizational rights of
offsite employees entitle them to access to the outside,
nonworking areas of the employer’s property. . . .”), and others
apparently treating it as a prerequisite, see, e.g., id. at 648
 13

(“When an offsite employee seeks to encourage the organization
of similarly situated employees . . . , the employee seeks to
further his own welfare.” (emphasis added)).

But we sit in judgment on the NLRB’s decision in the ITT
remand, not on the decision in Hillhaven per se. And in
describing its understanding of Hillhaven, the ITT remand
decision certainly appeared to treat a finding of similarity as a
condition precedent for a finding that the handbillers had
nonderivative section 7 rights -- itself a prerequisite for
application of Hillhaven’s balancing test. See ITT Remand
Decision, 341 N.L.R.B. No. 118, at 3 (“With respect to the
section 7 rights of offsite employees, the Board stressed [in
Hillhaven] that when offsite employees seek to organize
similarly situated employees at another employer facility, the
employees seek strength in numbers . . . ultimately to improve
their own working conditions.” (emphasis added)). More
important, as we discuss in Part IV, there is no doubt that in this
case the NLRB’s application of the Hillhaven test turned on the
fact that the Oscoda and East Tawas employees were similarly
situated. That is a sufficient basis for us to conclude that there
is a reasonable connection between the rationale the Board
offered and the test it applied in this case.

2. The second problem that ITT Industries discerned in the
NLRB’s first ITT decision was the Board’s failure to take into
account the property interests of the employer vis-à-vis the
trespassing, off-site employees. Following our remand, the
Board did expressly consider those interests. Hillhaven
acknowledged our observation that “offsite employees -- in
contrast to onsite employees . . . -- may be regarded as
trespassers by the employer,” and that “this fact must be
considered in weighing the access rights of offsite employees.”
336 N.L.R.B. at 649. But it also reasonably noted that “even
onsite employees arguably are trespassers on the employer’s
 14

property if they seek access while off duty, a time when they
have not been invited onto the property,” id. at 650, as ITT
counsel conceded at oral argument, see Oral Arg. Tape at 16:26-
18:33.2 “There is an inherent tension, then,” the Board
recognized, “between an employer’s property rights and the
Section 7 rights of its employees” -- a tension that cannot be
resolved merely by reference to the law of trespass. 336
N.L.R.B. at 650. Rather, as the Supreme Court said in Hudgens
v. NLRB, it is “the task of the Board . . . to resolve conflicts
between § 7 rights and private property rights, ‘and to seek a
proper accommodation between the two.’” 424 U.S. at 521
(quoting Central Hardware Co. v. NLRB, 407 U.S. 539, 543

2
In its briefs, ITT argued that on-site employees are unlike off-
site employees because the former are “rightfully on the employer’s
property [and] do not become trespassers by engaging in Section 7
ac tivities.” Pet’r Reply Br. at 5; see Pet’r Br. at 30-32. But this just
begs the question. Purely from the perspective of trespass law, on-site
employees may exceed the scope of their invitation to access, and so
not be “rightfully” on, the employer’s property when they handbill at
a place or time forbidden by their employer. See RESTATEMENT
(SECOND) OF T ORTS § 168 (1965) (stating that a “conditional or
restricted consent to enter land creates a privilege to do so only in so
far as the condition or restriction is complied with”); id. § 170
(providing that a “consent given by a possessor of land to the actor’s
presence on the land during a specified period of time does not create
a privilege to enter or remain on the land at any other time”); see also
id. § 168 cmt. b, illus. 2. Thus, given that section 7 nonetheless
entitles on-site employees to engage in organizational activities on
company property, the decisive question is still whether section 7
entitles off-site employees to some form of access as well. Cf.
Lechmere, 502 U.S. at 531 (noting that Ҥ 7 of the NLRA may, in
certain limited circumstances, restrict an employer’s right to exclude
[even] nonemployee union organizers from his property”); New York
New York, LLC v. NLRB, 313 F.3d 585, 589 (D.C. Cir. 2002) (noting
that it is employees’ section 7 rights that permit them to organize on
employer property, not the operation of trespass law).
 15

(1972)). “What is ‘a proper accommodation’ in any situation
may largely depend upon the content and the context of the § 7
rights being asserted.” Id.

In examining that context, the Board noted that “the
situation of offsite employees implicates some distinct
considerations” from that of either nonemployees or on-site
employees. Hillhaven, 336 N.L.R.B. at 649. Although “[o]n
one view, [off-site] employees are . . . ‘strangers’ to the
employer, . . . [o]f critical importance, on the other hand, is the
fact that an employment relationship exists between them and
the employer, which distinguishes offsite employees from the
ordinary trespasser, who truly is a stranger.” Id. “The existence
of an employment relationship,” the Board said, “means that the
employer has a lawful means of exercising control over the
offsite employee (even regarded as trespasser), independent of
its property rights.” Id. That ability to exercise control provides
a reasonable basis for the Board’s conclusion that permitting
access by off-site employees trenches less seriously on the
employer’s property interests than would permitting access by
nonemployees. As the Board explained: “Surely it is easier for
an employer to regulate the conduct of an employee -- as a legal
and a practical matter -- than it is for an employer to control a
complete stranger’s infringement on its property interests. The
employer, after all, controls the employee’s livelihood.” ITT
Remand Decision, 341 N.L.R.B. No. 118, at 4 (quoting
Hillhaven, 336 N.L.R.B. at 649).

But while the Board thus determined that access for off-site
employees impinged less upon an employer’s property interests
than did access for nonemployees, it cautioned that it was not
saying “that in protecting its interests and preserving its property
rights, an employer dealing with offsite employees faces
precisely the same situation as it would when confronted by the
access claims of onsite employees.” Hillhaven, 336 N.L.R.B. at
 16

649. The Board recognized that the “employee status of offsite
employees . . . may be more difficult to determine, at least
initially,” and that there “may be other, unique problems
involved, as well,” citing our statement in ITT Industries that the
“employer’s right to control the disputed premises likely
implicates security, traffic control, personnel, and like issues
that do not arise when only on-site employee access is
involved.” Id. at 649-50 (quoting ITT Industries, 251 F.3d at
1005). The NLRB thus reasonably concluded that, while access
by off-site employees raised fewer concerns than access by
nonemployees, “an employer may well have heightened private
property-right concerns when offsite (as opposed to onsite)
employees seek access to its property to exercise their Section
7 rights.” ITT Remand Decision, 341 N.L.R.B. No. 118, at 3
(quoting Hillhaven, 336 N.L.R.B. at 648).

3. The final problem with the NLRB’s first ITT decision
was that it appeared to adopt for off-site employees the same
“balancing test used to delineate the scope of on-site employee
access rights,” and thus did not “take[] proper account of an
employer’s predictably heightened property concerns” when off-
site employees are involved. ITT Industries, 251 F.3d at 1005.
This time, however, the Board did take proper account. Like the
Tri-County test, the Hillhaven test provides that “[o]n balance,
. . . the Section 7 organizational rights of offsite employees
entitle them to access to the outside, nonworking areas of the
employer’s property, except where justified by business
reasons.” Hillhaven, 336 N.L.R.B. at 650 (emphasis added).
But “[i]n weighing those reasons,” the Board promised, “we will
take into account an employer’s ‘predictably heightened
property concerns’ . . . when offsite, as opposed to onsite,
employees are involved.” Id.

ITT disputes the NLRB’s contention that the Hillhaven test
really is different from the Tri-County test applied to on-site
 17

employees, since both require the employer to provide access
unless justified by business reasons. Hillhaven, however, not
only promised that the Board would take account of the
employer’s heightened property concerns in the case of off-site
employees, but also declared that the business justifications for
denying access to off-site employees “may involve
considerations not applicable to access by off-duty, onsite
employees.” ITT Remand Decision, 341 N.L.R.B. No. 118, at
3 (quoting Hillhaven, 336 N.L.R.B. at 648). In this way, the
Board said, “the test for determining the right to access for
offsite visiting employees differs, at least in practical effect,
from the Tri-County test for off-duty, onsite employees.” Id.
(quoting Hillhaven, 336 N.L.R.B. at 648). For example, under
Hillhaven the heightened problems that access by off-site
employees may pose for security and traffic control “might well
justify an employer’s restriction (or even prohibition) of such
access.” Id. at 3 n.28 (quoting Hillhaven, 336 N.L.R.B. at 650).
And greater difficulty in determining the employee status of
offsite employees might justify “requir[ing] apparent trespassers
to identify themselves . . . to determine whether the person
seeking access is, in fact, an offsite employee of the employer.”
Id. (quoting Hillhaven, 336 N.L.R.B. at 650).

All of this suggests that the Board is committed, at least in
the abstract, to analyzing an employer’s business justifications
with greater deference when off-site rather than on-site
employees are involved. As we shall see in Part IV, the Board
fulfilled that commitment in the case now before us.

IV

In this Part, we consider ITT’s contention that even if the
Hillhaven test is proper, its application to the instant case is
 18

unreasonable and unsupported by substantial evidence.3 We
conclude, to the contrary, that the Board reasonably applied
Hillhaven and that its findings were supported by substantial
evidence. The Board’s determination that ITT violated section
8(a)(1) by barring the off-site employees from handbilling in its
parking lot was therefore permissible.

1. The NLRB began its analysis on remand by considering
the scope of the section 7 rights of the handbilling employees.
See ITT Remand Decision, 341 N.L.R.B. No. 118, at 3.
“Significantly,” it noted, “the offsite employees were seeking to
organize the East Tawas employees in a single, three-plant unit
which included their own Oscoda plant.” Id. Indeed, the
employer had stipulated to the appropriateness of such a unit.
See First ITT Decision, 331 N.L.R.B. at 6; see also ITT Remand
Decision, 341 N.L.R.B. No. 118, at 1 (noting that the three
plants are within short commuting distance of one another and
that ITT periodically transferred employees from one plant to
another). Under these circumstances, the Board’s conclusion
that the employees were similarly situated, and therefore that the
off-site employees possessed nonderivative section 7 rights, was
reasonable. As the Board said, the “offsite employee’s personal
stake in organizing his counterparts at a different employer
facility is clearest where he is, or will be, part of a multifacility
bargaining unit that includes onsite employees.” Id. at 4
(quoting Hillhaven, 336 N.L.R.B. at 649).

3
See Lee Lumber & Bldg. Material Corp. v. NLRB, 310 F.3d 209,
216 (D.C. Cir. 2002) (stating that this court “‘review[s] the Board’s
factual conclusions’ only for ‘substantial evidence,’ and must ‘uphold
the Board’s application of law to facts unless arbitrary or otherwise
erroneous’” (quoting Harter Tomato Products Co. v. NLRB, 133 F.3d
934, 937 (D.C. Cir. 1998))).
 19

ITT correctly points out that, in Hillhaven, the Board
declared that “a similar self-interest” can arise “even where the
unorganized employees may be in a different bargaining unit.”
Hillhaven, 336 N.L.R.B. at 649. But such a case is not before
us, and we need not decide it now. As there is no dispute in the
instant case that a single bargaining unit encompassing the three
groups of employees would be appropriate, we cannot dispute
the reasonableness of the Board’s conclusion that “the Section
7 rights at issue here are indeed substantial.” ITT Remand
Decision, 341 N.L.R.B. No. 118, at 4 (emphasis added).4

2. The Board next addressed the question of ITT’s private
property interests. See id. ITT had “prohibited access to its
parking lot to the Oscoda employees based on security
considerations.” Id. In support of the no-access rule, ITT cited
“various incidents of vandalism to vehicles and . . . threats to
personal security that occurred over the past few years.” Id.
These involved instances in which the window of a car was
shattered, the lug nuts on a supervisor’s car were loosened, car
tires were slashed, a stranger entered the property to fight with
an employee, and the estranged husband of an employee
telephoned to say he had a gun and was coming after his wife.
Id. at 2.

The Board acknowledged that ITT had barred the off-site
employees from the parking lot on the basis of a neutral rule that
denied access to any person not employed at East Tawas, with

4
Cf. Speedrack Prods. Group, Ltd. v. NLRB, 114 F.3d 1276, 1278
(D.C. Cir. 1997) (“An employee is eligible to vote in a representation
elec tion if she shares ‘a community of interest’ with the other
employees in the unit. The Board examines various factors to
determine if a community of interest exists, such as the similarity of
wages, benefits, skills, duties, working conditions, and supervision of
the employee . . . .”).
 20

the exception of relatives and friends of employees. (The latter
were permitted to drop off and pick up employees in the parking
lot, but were not allowed to get out of their vehicles. See id. at
4.) The Board also found that the employer had advanced
“legitimate security concerns” that would have to be considered
in assessing whether off-site employees could be barred. Id.
“[R]easonable measures to protect against legitimate security
threats do not,” the Board said, “‘take a back seat’ to employees’
Section 7 rights.” Id. at 5. Thus, the question was not whether
any limitations on access by off-site employees were
permissible, but whether ITT’s concerns “justif[ied] the total
exclusion of [its] offsite employees from its parking lot.” Id. at
4 (emphasis added); see id. at 5.

3. Applying the Hillhaven balancing test, the Board
concluded that ITT’s security concerns did not justify wholly
denying its off-site employees the access they sought. The
remand decision gave three reasons for that conclusion.

First, “the handbillers were not strangers to [ITT]; they
were [ITT’s] employees.” Id. at 4. The Board noted that the
handbillers had announced their identity and purpose when they
came on the property, and that there was “no evidence that [ITT]
questioned their intent to handbill or their claim to be its
employees.” Id. Although ITT, “of course, had the authority to
require the Oscoda employees to specifically verify that they
were its employees, . . . it did not do [so] here.” Id. at 4 n.35.
The Board found that, as identified employees of ITT, the
handbillers’ “presence did not implicate the security concerns
posed by the presence of nonemployees on [ITT’s] property,” as
was the case for several of the incidents that had generated the
no-access policy. Id. at 4. In particular, the Board found that,
having “identified themselves as employees . . . , it was
understood that they were subject to discipline if they engaged
in vandalism or other misconduct.” Id.
 21

Second, the NLRB noted that the Oscoda employees
“attempted to handbill at 6 a.m., a time when there was a lot of
activity in the parking lot.” Id. The Board reasonably observed
that this “was hardly a time when the parking lot was . . . open
to unobserved vandalism, such as had occurred in the past.” Id.
Moreover, there was “absolutely no evidence of any misconduct
or proclivity toward such misconduct by any of the Oscoda
employees who were attempting to handbill.” Id.

Third, the employer did not raise any other property
concerns. There was “no evidence, or claim, that the handbillers
would cause any disruption to traffic in the parking lot.” Id.
Nor did the record “demonstrate the possibility of any unique
logistical problems that might have arisen from the handbilling.”
Id.

The Board concluded, in view of these factors, that ITT’s
“complete refusal to allow handbilling by its own offsite
employees was not reasonably tailored to address its concerns
about protecting its property against vandalism or violence
against its onsite employees.” Id. We cannot say that this
application of the Hillhaven test was arbitrary or capricious.

ITT raises two further challenges to the application of the
Board’s balancing test. First, it contends that the NLRB
impermissibly substituted its business judgment for that of the
company when, in the course of examining ITT’s security
concerns, the Board stated that it was “also significant that [ITT]
did not install security cameras on its property, did not employ
security guards to protect the premises, and did not request the
police to patrol the area.” Id. ITT maintains that this statement
reflects the Board’s own business judgment that it would have
been better to adopt those security measures, rather than the no-
access policy that ITT actually chose.
 22

We do not read the NLRB’s remand decision that way. To
the contrary, the Board acknowledged that “the decision to
install cameras or hire security guards is an issue of [ITT’s] own
business judgment,” and insisted that “we do not seek to
substitute our judgment for that of [ITT].” Id. An ITT
supervisor had testified that, instead of installing cameras or
hiring guards, ITT relied on “an informal practice whereby
‘everybody kind of looks out for each other.’” Id. The Board
found that ITT’s “claimed need” for a rule totally excluding off-
site employees “must be afforded some degree of skepticism
when there are other measures . . . that have not been taken
because [ITT] believes that it is enough to satisfy security
concerns that everyone ‘looks out for one another.’” Id.
(emphasis added). From this, the Board simply concluded that
barring off-site employees from the parking lot at 6 a.m. was not
justified by ITT’s asserted rationale -- security in the lot -- since
there was sufficient activity at that time to ensure that “look[ing]
out for one another” would take care of the problem.

ITT also contends that the availability of other means of
communicating with the East Tawas employees, specifically the
ability to handbill them off-site, compels the conclusion that
ITT’s no-access rule was lawful. As the Board pointed out,
however, “inquiry into such considerations ‘is made only when
nonemployees are on the employer’s property.’” Id. at 5
(quoting First Healthcare, 344 F.3d at 541); see Babcock, 351
U.S. at 113-14. Having reasonably concluded that off-site
employees have section 7 rights not possessed by
nonemployees, see supra Part III, it was also reasonable for the
NLRB to decide not to apply the same test to off-site employees
that it applies to nonemployees.
 23

V

The Supreme Court “has emphasized often that the NLRB
has the primary responsibility for developing and applying
national labor policy.” NLRB v. Curtin Matheson Scientific,
Inc., 494 U.S. 775, 786 (1990).5 For that reason, a court must
accord a Board rule “considerable deference” and uphold it as
long as it is “rational and consistent” with the NLRA, “even if
we would have formulated a different rule had we sat on the
Board.” Id. at 786-87. ITT disparages this declaration of
judicial deference as a “tired mantra.” Pet’r Reply Br. at 2. But
while there is no question that it is oft-repeated,6 that hardly
renders it “tired.” To the contrary, constant repetition serves to
remind us of the line we must not cross if we are to keep judicial
review separate from the formulation of public policy.

We conclude that the Board has constructed a rational
framework for evaluating the efforts of off-site employees to
conduct organizing activity in outside, nonworking areas of their
employer’s property, and that the Board rationally applied that

5
“Because it is to the Board that Congress entrusted the task of
‘applying the Act’s general prohibitory language in the light of the
infinite combinations of events which might be charged as violative
of its terms,’ that body, if it is to accomplish the task which Congress
set for it, necessarily must have authority to formulate rules to fill the
interstices of the broad statutory provisions.” Curtin Matheson, 494
U.S. at 786 (quoting Beth Israel Hospital v. NLRB, 437 U.S. 483, 500-
01 (1978) (quoting Republic Aviation, 324 U.S. at 798)).
6
See, e.g., Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S.
359, 364 (1998); Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781,
787-88 (1996); NLRB v. Town & Country Elec., Inc., 516 U.S. 85, 94
(1995); Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891 (1984); Regal
Cinemas, Inc. v. NLRB, 317 F.3d 300, 306-07 (D.C. Cir. 2003); Lee
Lumber, 310 F.3d at 216; Harter Tomato Prods., 133 F.3d at 937.
 24

framework to the circumstances of this case. Accordingly, we
deny ITT’s petition for review and grant the NLRB’s cross-
application for enforcement.

So ordered.