# Central Hardware Co. v. NLRB/Dissent Marshall

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Marshall
[p548] MR. JUSTICE MARSHALL, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN join, dissenting.
I agree with the Court that this case should have been considered under NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956). That case is, as the opinion of the Court suggests, narrower than Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308 (1968). It does not purport to interpret the National Labor Relations Act (NLRA) so as to give union members the same comprehensive rights to free expression on the private property of an employer that the First Amendment gives to all citizens on private property that is the functional equivalent of a public business district. But Babcock is, in another sense, even broader than Logan Valley. It holds that where a union has no other means at its disposal to communicate with employees other than to use the employer's property, or where the union is denied the access to employees that the employer gives antiunion forces, the union may communicate with employees on the property of the employer. Congress gave unions this right in Section 7 [p549] of the NLRA, 61 Stat. 140, 29 U.S.C. § 157. The First Amendment gives no such broad right to use private property to ordinary citizens.
The National Labor Relations Board found that petitioner permitted antiunion solicitation on its premises at the same time that it barred union solicitation. 181 N.L.R.B. 491 (1970). It made no explicit finding as to whether access to the employees was reasonably available to the union outside of the petitioner's property, but suggested that it was not. Rather than deciding the case under Babcock, supra, which would appear to control and to provide that the union activity in the case is protected by the NLRA, the Board appears to have decided the case under Logan Valley, supra. The United States Court of Appeals for the Eighth Circuit affirmed on the basis of Logan Valley and found it unnecessary to review the Board's finding of discrimination by the employer against the union in the use of its property or to remand the case for a determination of whether it was necessary for the union to use petitioner's property to communicate with the employees. 439 F. 2d 1321 (1971).
It is obvious, then, that neither the Board nor the Court of Appeals has fully considered whether the employer's conduct was proscribed by Babcock even though the indications in the Board's opinion are that it was. In reaching out to decide this case under Logan Valley, the agency and the lower court decided a difficult constitutional issue that might well have been avoided by deciding the case under the NLRA. This was error. The principle is well established that decisions on constitutional questions should not be reached unnecessarily. See, e.g., Dandridge v. Williams, 397 U.S. 471, 476 (1970); Rosenberg v. Fleuti, 374 U.S. 449 (1963).
[p550] Since both the agency and the Court of Appeals should have first decided whether or not Babcock controlled the instant case before proceeding to decide it under Logan Valley, before this Court decides whether or not the decision below was correct under the Constitution, we should remand the case to the Board, rather than to the Court of Appeals, for a square holding as to the applicability of Babcock to the facts of this case. MR. JUSTICE WHITE has recently re-emphasized the point that when an agency decides a case under an incorrect legal approach, courts should not seek to predict whether the agency would have decided the case the same way under the correct approach, but should instead remand the case to the agency for further proceedings. FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 249 (1972). See also Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962).
Accordingly, I would remand this case to the Board for further proceedings without deciding the constitutional question.