LECHMERE, INC., PETITIONER V. NATIONAL LABOR RELATIONS BOARD

   No. 90-983

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The First Circuit

   Brief For The National Labor Relations Board In Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. A1-A33) is reported
at 914 F.2d 313.  The Board's decision and order (Pet. App. B1-B29)
are reported at 295 N.L.R.B. No. 15.

                             JURISDICTION

   The judgment of the court of appeals was entered on September 17,
1990.  A petition for rehearing was denied on October 25, 1990.  Pet.
App. C1.  A petition for a writ of certiorari was filed on December
17, 1990.  This Court's jurisdiction is invoked under 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   Whether the National Labor Relations Board reasonably concluded
that the owner of a store in a shopping plaza violated Section 8(a)(1)
of the National Labor Relations Act by barring nonemployee union
personnel from distributing organizational literature to store
employees in the plaza's parking lot.

                               STATEMENT

   1. a. Petitioner operates a chain of retail stores, one of which is
located in the Lechmere Shopping Plaza in Newington, Connecticut.
Newington is part of the Greater Hartford metropolitan area, which has
approximately 900,000 residents.  Petitioner's Newington store employs
about 200 employees.  Petitioner owns the property occupied by and
immediately surrounding its store, while an unaffiliated enterprise
owns the property occupied by the satellite stores.  Ownership of the
plaza's parking lot and other property is divided nearly equally
between the two.  Although the parking lot is not marked by signs
warning of restrictions on access or use, petitioner has consistently
enforced a policy against nonemployee solicitation and distribution
activities at the plaza.  Pet. App. A2, A26, B3-B5, B10-B13, B19.

   The main entrance to the plaza is from the Berlin Turnpike, a
four-lane highway with a speed limit of 50 miles per hour.  There is
no traffic signal or stop sign at the entrance from the turnpike into
the plaza.  Abutting the turnpike is a 46-foot-wide grassy strip, most
of which is public property;  the strip is the only public property in
the area of the plaza.  Pet. App. A18 n.11, B6.

   b. Beginning on June 16, 1987, Local 919 of the United Food and
Commercial Workers (Union) began a campaign to organize the employees
at petitioner's store by placing a series of five advertisements in
the Hartford Courant, a general circulation newspaper serving the
Greater Hartford area.  The Courant has fewer than 100,000 daily
subscribers, and it is unknown how many of petitioner's employees are
among them.  Petitioner systematically removed the Union's
advertisements from papers delivered to its store.  Pet. App. A4-A5,
B5, B13, B18 & n.6.

   On June 18, Union representatives placed handbills on the
windshields of cars parked in the portion of the plaza's parking lot
where petitioner's employees had been told to park.  Shortly after
this handbilling began, the store's assistant manager informed the
organizers of petitioner's no-solicitation policy and asked them to
leave.  The organizers left, and petitioner's security guards
immediately confiscated the handbills.  Union representatives returned
to the parking lot twice that day to distribute handbills, but met
with the same results.  Pet. App. A5, B13-B14.

   On June 20, two Union representatives began placing handbills on
the windshields of cars parked in the area used by petitioner's
employees.  Almost immediately, petitioner's store manager asked them
to leave.  They complied.  The Union representatives then attempted to
pass out handbills to employees by standing on what they correctly
understood to be public property abutting the main entrance to the
plaza.  Within five minutes, the store manager claimed that the
organizers were on petitioner's property, demanded that they leave,
and called the police to eject them.  Although a policeman told the
Union representatives that they had a right to remain on the public
portion of the grassy strip, he urged them to take care because
distributing literature from the strip was dangerous.  Soon after, the
Union organizers left.  Pet. App. B14-B17, B24-B25.

   Meanwhile, the Union secured the names and addresses of 41
employees by recording the license plate numbers from cars believed to
belong to petitioner's employees, and then obtaining the names and
addresses of the registered owners from the Connecticut Department of
Motor Vehicles.  The Union sent four mailings of literature to those
individuals, made about ten home visits, and attempted to reach
another ten employees by phone.  Nearly half of the 41 had unlisted
numbers, and several were high school students whose parents refused
to allow the organizers to speak with them.  Pet. App. A6, B5 & n.10,
B18-B19.

   2. The Union filed charges alleging that petitioner had violated
Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C.
158(a)(1), by denying the nonemployee Union organizers access to the
parking lot for the purpose of giving handbills to employees, thereby
interfering with the employees' rights under Section 7 of the Act, 29
U.S.C. 157.  /1/ Pet. App. B2.  Relying on Fairmont Hotel Co., 282
N.L.R.B. 139 (1986), the administrative law judge found that
petitioner's denial of access violated Section 8(a)(1).  Pet. App.
B22-B23.

   Applying a different analysis, the Board affirmed.  The Board
relied on its recent decision in Jean Country, 291 N.L.R.B. No. 4
(Sept. 27, 1988), in which it declared that "in all access cases" it
would balance "the degree of impairment of the Section 7 right if
access should be denied * * * against the degree of impairment of the
private property right if access should be granted," and that an
"especially significant" consideration in this balancing process would
be "the availability of reasonably effective alternative means" of
communication.  Slip op. 9.

   The Section 7 interest in this case, the Board stated, is the right
of the employees to organize -- a right "at the very core" of the Act.
 It observed that, because the Union's handbilling occurred in a
parking lot and did not impede traffic flow or interfere with the
lot's normal use, the handbilling did not "disrupt()" petitioner's
business or significantly "inconvenience()" its customers.  Because
neither the handbilling's location nor the manner in which it was
carried out diminished "the strength of the core Section 7 right
asserted," the Board found that the "Section 7 right is certainly
worthy of protection against substantial impairment." Pet. App. B4.

   Petitioner's property right, the Board found, was "relatively
substantial," but was qualified by the fact that the plaza was
"essentially open to the public." Pet. App. B4.  The Board also
pointed out that petitioner "shares ownership in the parking lot * * *
with the operators of a strip of 13 stores," and that the "parking lot
is available for use by patrons and employees of all the stores." Id.
at B3.

   Finally, the Board found that "there was no reasonable, effective
alternative means available for the Union to communicate its message
to (petitioner's) employees." Pet. App. B4.  The Board explained that,
in the "large 'suburban-urban'" setting of Greater Hartford, the use
of mass media -- such as newspapers, radio, and television -- was
"both expensive and ineffective" as a means of communicating with
petitioner's 200 employees.  Id. at B4-B5.  The Board also found that,
despite the Union's "diligence and perseverance," the "obstacles to
comprehensive tallying of (employees') names and addresses" from
license plate numbers of cars parked in the plaza parking lot were
"manifest." Id. at B5.  The Board further found that the high speed of
traffic made the strip of public property abutting the turnpike "an
ineffective and unsafe locale for the union activity." Id. at B6.

   The Board concluded that "the degree of impairment" of the
employees' Section 7 right to organize "if (union) agents were denied
access to (petitioner's) parking lot to distribute organizational
literature outweighs the degree of impairment of (petitioner's)
property right if access were granted." It therefore found a violation
of Section 8(a)(1).  Pet. App. B6-B7.  /2/

   3. The court of appeals enforced the Board's order.  After
reviewing NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), and later
decisions of this Court discussing the right of access to private
property under Section 7, Pet. App. A10-A12, the court concluded that
the Board's Jean Country approach to the accommodation of conflicting
rights in such cases is a "reasonable interpretation of the Act" that
"meld(s) harmoniously with binding precedent." Pet. App. A14.  The
court rejected petitioner's contention that Jean Country's balancing
test conflicts with the approach laid down in Babcock.  Pet. App. A12
& n.5, A14.

   The court also rejected petitioner's contention that the Board had
incorrectly applied the Jean Country principles in this case.  Pet.
App. A14-A22.  After an extensive review of the Board's analysis, the
court agreed that core Section 7 rights were at issue;  that the
exercise of those rights would not interfere with petitioner's
business;  and that without effective alternative means of
communication, the Section 7 right at stake would be "substantially
destroyed." Pet. App. A15.

   Turning to "the crux of the dispute," the court upheld the Board's
conclusion that the Union had no effective alternative means to reach
petitioner's employees.  Pet. App. A16, A22.  In contrast to Babcock,
where this Court found reasonable alternatives to exist, the court of
appeals noted that without access to the parking lot, petitioner's
employees could not be reachedd:  "employees are not easily accessible
or identifiable," the area involved in this case is "much more
populous," and the Union's "good-faith effort to explore alternative
routes" tended to reveal that other means of communication were
ineffective.  Pet. App. A17-A18.  The court also noted that, without
access, there was no way for the Union to speak with employees in
person and that use of mass media would be prohibitively expensive.
Id. at A19.  Moreover, the court noted, the property right at issue
here is far weaker than that at issue in Babcock;  that case involved
a private and secluded factory not open to the public, while, here,
admission to the publicly accessible parking lot would be "minimally
intrusive." Id. at A17, A19.

   One judge dissented, finding this case indistinguishable from
Babcock.  Pet. App. A24-A28.  The dissenting judge also took issue
with the Jean Country test, believing that in assessing the union's
alternative means it slights such methods of communication as
newspapers, radio, and television, and that it equates the employees'
lack of response to the union's message with the absence of adequate
means for the union to reach employees.  Id. at A28-A33.

                               ARGUMENT

   Petitioner contends (Pet. 6-15) that the Board's Jean Country
decision, as applied in this case to allow union personnel access to
petitioner's parking lot to engage in organizational handbilling,
conflicts with this Court's decision in Babcock.  That contention is
without merit.  Moreover, those few courts of appeals that have
addressed the issue have consistently concluded that the Jean Country
approach represents a reasonable accommodation of employees' Section 7
rights and property rights.  Accordingly, this Court's review is not
warranted.

   1. In Babcock, the Court declared that, where the exercise of
Section 7 rights conflicts with property rights, the Board must seek
to accommodate them "with as little destruction of one as is
consistent with the maintenance of the other." 351 U.S. at 112.  "(I)f
reasonable efforts by the union through other available channels of
communication will enable it to reach the employees with its message,"
an employer may enforce nondiscriminatory rules barring nonemployees
from distributing union literature on its property.  Ibid.  In
contrast,

      when the inaccessibility of employees makes ineffective the
      reasonable attempts by nonemployees to communicate with them
      through the usual channels, the right to exclude from property
      has been required to yield to the extent needed to permit
      communication of information on the right to organize.

Ibid.  Applying that test to the facts presented, the Babcock Court
found that nonemployee organizers were not entitled to access to the
industrial plant's parking lot in order to distribute organizational
literature to employees.  The Court emphasized that the employees
lived in a nearby town or its vicinity and could readily be reached
through the mails, contacts on the town streets, home visits, and
telephone calls.  Id. at 106-107, 113-114.

   In Hudgens v. NLRB, 424 U.S. 507 (1976), the Court reaffirmed the
Babcock accommodation principle, but indicated that in making the
accommodation the Board should take into account the character of all
the rights involved.  "The locus of that accommodation * * * may fall
at differing points along the spectrum depending on the nature and
strength of the respective Section 7 rights and private property
rights asserted in any given context." Id. at 522.  The Court left
"the primary responsibility" for effecting the accommodation to the
Board.  Ibid.

   Taking heed of Babcock and Hudgens, and in light of its experience
in applying the Act, the Board reexamined its framework for making a
proper accommodation in access-to-property cases in Jean Country.  In
Fairmont Hotel, 282 N.L.R.B. 139 (1986), the Board had announced a
test under which the claim of Section 7 rights would be balanced
against the strength of the property right involved, with the stronger
right prevailing.  Only if the rights were deemed relatively equal in
strength would the existence of reasonable alternative means of
communication "become determinative." 282 N.L.R.B. at 142.  In Jean
Country, the Board concluded that "the availability of reasonable
alternative means is a factor that must be considered in every access
case." Slip op. 3.

   To ensure the proper calibration of competing interests, the Board
fashioned a multi-factor balancing test.  Jean Country, slip op. 9-10.
 In keeping with Hudgens, the Board's test calls for a careful
examination of the nature and strength of the Section 7 and property
rights at issue.  The "essential concern" is to balance "the degree of
impairment of the Section 7 right if access should be denied * * *
against the degree of impairment of the private property right if
access should be granted." Slip op. 9.  In that analysis, the
"availability of reasonably effective alternative means" is
"especially significant." Ibid.  In considering the adequacy of the
alternative means, the Board stated that it will consider, among other
factors, "the desirability of avoiding the enmeshment of neutrals in
labor disputes, the safety of attempting communications at alternative
public sites, the burden and expense of nontrespassory communication
alternatives, and, most significantly, the extent to which exclusive
use of the nontrespassory alternatives would dilute the effectiveness
of the message." Slip op. 8-9 (footnote omitted).

   As the court of appeals explained, Jean Country reasonably
implements the principles of Babcock and Hudgens and the policies of
the Act committed to the Board's care.  Pet. App. A14.  Every court
that has considered the issue has reached the same conclusion.
Laborers' Local Union No. 204 v. NLRB, 904 F.2d 715, 718 (D.C. Cir.
1990);  see Emery Realty, Inc. v. NLRB, 863 F.2d 1259, 1264 (6th Cir.
1988) (criticizing Fairmont and approving Jean Country in dicta).

   2. a. Petitioner contends (Pet. 10-12) that Jean Country misapplies
the alternative means requirement of Babcock by focusing not on
whether the union can "reach" the employees through use of
nontrespassory alternatives, but on whether the union is successful in
using those alternatives.  That contention misconstrues both Babcock
and the Board's approach.  Babcock requires not only that alternative
means of communication be available, but that those "usual means" not
be "ineffective" for the purpose of communicating with the employees.
351 U.S. at 112, 113.  Nothing in the Court's opinion requires the
Board to ignore the possibility that alternative means (such as mass
media) might be too expensive or burdensome to constitute a realistic
way for the union to disseminate its message.

   Likewise, the Board does not base its access determinations on
whether the employees are willing to listen to the union's message;
rather, the Board's test focuses on whether there is a reasonable
means for the union to convey that message at all.  If the means of
communication without access cannot reasonably transmit the union's
message to employees, Section 7 rights may be impermissibly destroyed.
 The Board's statement in Jean Country, slip op. 9, that it would
consider "the extent to which exclusive use of the non-trespassory
alternatives would dilute the effectiveness of the message" does not
mean, as petitioner suggests (Pet. 10), that the Board looks to the
effectiveness of the "message" rather than the effectiveness of the
"attempts." The statement merely reflects the truism that union
communications that are unlikely to be heard by a large part of the
intended audience are necessarily diluted in their effectiveness.  /3/

   The Board's analysis in this case makes evident the error of
petitioner's contention that the Board has "made the Union's success
the primary indicator of whether the available non-trespassory means
of communication were adequate and effective." Pet. 11.  The Board
focused specifically on the inadequacy of the avenues of available
communication available, other than distribution of literature in
petitioner's parking lot.  The Board noted that, although the Union
placed advertisements in the area's general circulation newspaper in
an attempt to reach petitioner's employees, that approach was
expensive and ineffective because the employees lived in a large
"suburban-urban" area, and there was no showing that many of
petitioner's employees received, purchased, or read this newspaper.
/4/ The Board further noted that, although the Union obtained some
names and addresses of petitioner's employees from license plate
numbers, that method was deficient, even with Union diligence and
perseverance, because employees may use cars registered to others, may
car-pool, may walk or take the bus to work, or may not park in the
designated employee area.  Finally, the Board found that the narrow
strip of public property abutting the Berlin Turnpike afforded an
unsafe and ineffective locale for the Union's handbilling activity.
Pet. App. B5-B6.  Those findings demonstrate the Board's concern to
determine whether effective alternatives exist;  they do not evidence
an intention to ensure a positive employee response.

   Nor did the court of appeals change the focus of the inquiry from
the existence of alternative means to the level of enthusiasm of
employee response.  Contrary to petitioner's contention (Pet. 11), the
court canvassed objective factors impeding the Union from
communicating with the employees, and concluded that the Board's
determination was "sufficiently record-rooted" to justify affirmance.
Pet. App. A22.

   b. Petitioner also errs in contending that Babcock requires the
Board, in accommodating employee rights and private property rights,
to skew the balance "in favor of private property rights." Pet. 13.
Babcock directs the Board to accommodate the two rights "with as
little destruction of one as is consistent with the maintenance of the
other." 351 U.S. at 112.  Neither right enjoys presumptive primacy
over the other.  In Hudgens, the Court reaffirmed that principle,
adding that the "locus" of the accommodation of Section 7 rights and
private property rights would likely "fall at differing points along
the spectrum depending on the nature and strength of the respective
(Section) 7 rights and private property rights asserted in any given
context." 424 U.S. at 522.  If petitioner's presumption in favor of
protecting property rights were accepted, the careful scheme of
accommodation of conflicting rights envisioned by the Court would be
upset, and core Section 7 rights protected by the Act would be
subordinated to a nearly insurmountable preference for upholding
property rights.  Babcock did not decree such a one-sided regime.  /5/

   Nor does Sears, Roebuch & Co. v. San Diego County Dist. Council of
Carpenters, 436 U.S. 180 (1978), conflict with the Board's approach.
The issue in that case was whether the Act preempts a state trespass
action against a union engaging in area standards picketing;  the
Court held only that, when the union had not filed an unfair labor
practice charge, the state-law action was not preempted.  As
petitioner notes (Pet. 12-13), the Court did state that an owner's
property right to exclude trespassers is a strong right that will
"(g)eneral(ly)" outweigh Section 7 rights in the ordinary trespass
context.  But the Court had no occasion to consider whether any
particular alternative means of communication would be effective to
protect Section 7 rights.  Moreover, the Court expressly acknowledged
that when the Section 7 right lies at the "very core" of the Act --
such as "organizational solicitation," as is involved here -- the
argument for protecting the trespassory conduct is more "compelling."
See 436 U.S. at 205-206 & n.42.

   c. Finally, petitioner contends (Pet. 14-15) that the court of
appeals' holding in this case "resurrect(s)" a position that this
Court rejected in Babcock.  But as the court of appeals took pains to
explain, the circumstances in Babcock differ markedly from those of
this case.  Pet. App. A17-A22.

   Although in both cases nonemployee union organizers sought to
distribute handbills in a privately owned parking lot, the nature of
the property interests and the availability of alternative means of
communication in the two cases cannot be equated.  The property
involved in Babcock was a private parking lot, owned by the employer,
adjacent to a factory in a secluded and remote location fenced off
from the general public;  this case involves an open parking lot in a
shopping plaza where the public is invited, and, indeed, encouraged,
to come.  The court correctly characterized the magnitude of the
property interest in Babcock as "significantly stronger." Pet. App.
A17.  Moreover, alternative means of communicating with employees in
Babcock were "readily available" to the union because the factory was
situated in a rural area near one small community.  351 U.S. at 114.
Petitioner's store, in contrast, lies in the heart of a sprawling
metropolitan area of 900,000 people, and the employees are scattered
throughout.  If the Union had unlimited time and money, perhaps it
could saturate the region's mass media with organizational material
and "reach" petitioner's 200 employees;  but if that were the test for
finding that "reasonable efforts * * * through other available
channels" constituted a sufficient alternative, Babcock, 351 U.S. at
112, Section 7 rights would have little practical value in a case like
this one.

   At bottom, petitioner's insistence (Pet. 14-15) that the Board has
undervalued the means of communication commonly employed by
"politicians and advertisers" reduces to a disagreement over the
Board's appraisal of the efficacy of those methods when applied by a
Union to reach a targeted group of employees.  It is the Board,
however, that is entrusted with the responsibility to give
particularized content to the Act's policies.  NLRB v. Curtin Matheson
Scientific, Inc., 110 S. Ct. 1542, 1552 n.9 (1990);  NLRB v. J.
Weingarten, Inc., 420 U.S. 251, 266 (1975).  The Board's decision in
this case drew on its knowledge and experience in concluding that the
Union lacked adequate alternatives to reach petitioner's employees.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   JERRY M. HUNTER

      General Counsel

   D. RANDALL FRYE

      Acting Deputy General Counsel

   NORTON J. COME

      Deputy Associate General Counsel

   LINDA SHER

      Assistant General Counsel

   LAURENCE S. ZAKSON

      Attorney National Labor Relations Board

   FEBRUARY 1991

   /1/ 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.  Under Section 7,
"(e)mployees shall have the right to self-organization, to form, join,
or assist labor organizations, (and) to bargain collectively through
representatives of their own choosing.

   /2/ In findings not at issue here, the Board also concluded that
petitioner violated Section 8(a)(1) of the Act by attempting to remove
the organizers from public property abutting its parking lot, and that
petitioner's installation of a video camera to monitor exterior areas
adjacent to the store did not violate the Act.  Pet. App. B2, B25-B26.

   /3/ In Jean Country, the Board stated that "generally, it will be
the exceptional case where the use of newspapers, radio, and
television will be feasible alternatives to direct contact." Slip op.
7.  The dissenting judge viewed that observation as creating an
impermissible presumption against common means of communication in
modern society.  Pet. App. A27-A28.  The court, however, correctly
viewed this statement "as no more than a prediction of probable
outcomes in an increasingly urbanized society where use of mass media
has become more and more expensive." Id. at A20 n.13.

   /4/ Petitioner's practice of removing the advertisements from the
newspapers delivered to the store, Pet. App. B5 n.9, also vitiated the
effectiveness of that medium of communication.

   /5/ Nor has the Board tipped the scales unduly in favor of access.
Contrary to petitioner's suggestion (Pet. 12-13 & n.3), the Board,
since Jean Country, has not invariably found that a union is entitled
to access to private property.  In several cases, the Board has held
that the availability of alternative means of communication diminished
a union's need to engage in trespassory conduct.  See, e.g., Red Food
Stores, Inc., 296 N.L.R.B. No. 62 (Aug. 31, 1989);  Hardee's Food
Systems, Inc., 294 N.L.R.B. No. 48 (May 31, 1989), aff'd sub nom.
Laborers Local 204 v. NLRB, 904 F.2d 715 (D.C. Cir. 1990).