# Lechmere Inc. v. National Labor Relations Board

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## Dissenting Opinions

    White
    Stevens
United States Supreme Court
502 U.S. 527
Lechmere Inc. v. National Labor Relations Board
No. 90-970 Argued: Nov. 12, 1991. --- Decided: Jan 27, 1992
Syllabus
The National Labor Relations Act (NLRA) guarantees employees "the right to self-organization, to form, join, or assist labor organizations," § 7, and makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees" in the exercise of their § 7 rights, § 8(a)(1). Petitioner Lechmere, Inc., owns and operates a retail store located in a shopping plaza in a large metropolitan area. Lechmere is also part owner of the plaza's parking lot, which is separated from a public highway by a 46-foot wide grassy strip, almost all of which is public property. In a campaign to organize Lechmere employees, nonemployee union organizers placed handbills on the windshields of cars parked in the employees' part of the parking lot. After Lechmere denied the organizers access to the lot, they distributed handbills and picketed from the grassy strip. In addition, they were able to contact directly some 20% of the employees. The union filed an unfair labor practice charge with respondent National Labor Relations Board (Board), alleging that Lechmere had violated the NLRA by barring the organizers from its property. An administrative law judge ruled in the union's favor, recommending that Lechmere, inter alia, be ordered to cease and desist from barring the organizers from the parking lot. The Board affirmed, relying on its ruling in Jean Country, 291 N.L.R.B. 11, that in all access cases the Board should balance (1) the degree of impairment of the § 7 right if access is denied, against (2) the degree of impairment of the private property right if access is granted, taking into consideration (3) the availability of reasonably effective alternative means of exercising the § 7 right. Id., at 14. The Court of Appeals enforced the Board's order.
Held: Lechmere did not commit an unfair labor practice by barring nonemployee union organizers from its property. Pp. 531-541.
(a) By its plain terms, the NLRA confers rights only on employees, not on unions or their nonemployee organizers. Thus, as a rule, an employer cannot be compelled to allow nonemployee organizers onto his property. NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 113, 76 S.Ct. 679, 684, 100 L.Ed. 975. Babcock's holding was neither repudiated nor modified by this Court's decisions in Central Hardware Co. v. NLRB, 407 U.S. 539, 92 S.Ct. 2238, 33 L.Ed.2d 122, and Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196. See also Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, 436 U.S. 180, 98 S.Ct. 1745, 56 L.Ed.2d 209. Pp. 531-535.
(b) At least as applied to nonemployee union organizers, Jean Country is inconsistent with this Court's past interpretation of § 7. Babcock's teaching is straightforward: § 7 simply does not protect nonemployee union organizers 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." 351 U.S., at 112, 76 S.Ct., at 684. It is only when reasonable access to employees is infeasible that it becomes appropriate to balance § 7 and private property rights. Pp. 535-538.
(c) The facts in this case do not justify application of Babcock's inaccessibility exception. Because Lechmere's employees do not reside on its property, they are presumptively not "beyond the reach" of the union's message. Nor does the fact that they live in a large metropolitan area render them "inaccessible." Because the union failed to establish the existence of any "unique obstacles" that frustrated access to Lechmere's employees, the Board erred in concluding that Lechmere committed an unfair labor practice by barring the nonemployee organizers from its property. Pp. 539-541.
914 F.2d 313 (CA1 1990), reversed.
THOMAS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined. WHITE, J., filed a dissenting opinion, in which BLACKMUN, J., joined. STEVENS, J., filed a dissenting opinion.
Robert P. Joy, Boston, Mass., for petitioner.
Michael R. Dreeben, Washington, D.C., for respondent.
Justice THOMAS delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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