1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-25-1995

Metropolitan v NLRB

Precedential or Non-Precedential:

Docket 95-3086

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Recommended Citation

"Metropolitan v NLRB" (1995). 1995 Decisions. Paper 281.

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

No. 95-3086 

 

METROPOLITAN DISTRICT COUNCIL 

OF PHILADELPHIA AND VICINITY 

UNITED BROTHERHOOD OF 

CARPENTERS AND JOINERS OF 

AMERICA, AFL-CIO, 

 Petitioner

v. 

NATIONAL LABOR RELATIONS BOARD, 

 Respondent

 

On Appeal from a Final Decision 

and Order of the National Labor 

Relations Board 

(No. 4-CA-18791) 

 

Submitted October 12, 1995 

BEFORE: GREENBERG and LEWIS, Circuit Judges, 

and VANARTSDALEN, District Judge* 

(Filed: October 25, 1995) 

 

 Richard C. McNeill, Jr. 

 Sagot, Jennings & Sigmond 

 1172 Public Ledger Bldg. 

 Philadelphia, PA 19106 

 Kathy Krieger 

 101 Constitution Ave., NW 

 Washington, DC 20001 

 
2 

* Honorable Donald W. VanArtsdalen, Senior Judge of the United 

States District Court for the Eastern District of Pennsylvania, 

 sitting by designation. 

 David M. Silberman 

 Laurence Gold 

 815 16th Street, NW 

 Washington, DC 20006 

 Cynthia C. Estland 

 727 E. 2nd Street 

 Austin, TX 78705 

 Attorneys for Petitioner

 

 Frederick L. Feinstein 

 General Counsel 

 Linda Sher 

 Acting Associate General Counsel 

 Aileen A. Armstrong 

 Deputy Associate General Counsel 

 Robert J. Englehart 

 Margaret G. Neigus 

 National Labor Relations Board 

 1099 14th Street, N.W. 

 Suite 10700 

 Washington, DC 20570-0001 

 Attorneys for Respondent

 

OPINION OF THE COURT 

 

GREENBERG, Circuit Judge. 

I. PROCEDURAL AND FACTUAL HISTORY 

 The Metropolitan District Council of Philadelphia and 

Vicinity, United Brotherhood of Carpenters and Joiners of 

America, petitions this court for review of a Decision and Order 

of the National Labor Relations Board dismissing an unfair labor 

practice complaint against Leslie Homes, Inc. The Board found 
3 

that Leslie Homes did not violate section 8(a)(1) of the National 

Labor Relations Act, 29 U.S.C. § 158(a)(1), when it denied 

petitioner's representatives access to its property to distribute 

"area standards" handbills to potential purchasers of 

condominiums which Leslie Homes was constructing. The Board had 

jurisdiction under 29 U.S.C. § 160(a), and we have jurisdiction 

under 29 U.S.C. § 160(f). 

 The facts are not in dispute and are as follows. Leslie 

Homes began constructing Crestwood, a 288 unit condominium 

project, on its property in Bristol, Pennsylvania, in 1988. At 

the outset of construction the petitioner represented the 

carpenters on the project. In December 1989, however, Leslie 

Homes started to employ nonunion carpenters at wage rates and 

with benefits below prevailing union standards. In response, the 

petitioner, on April 1, 1990, attempted to distribute handbills 

to prospective condominium purchasers at Crestwood. The 

handbills asserted that Leslie Homes was employing 

"foreign/immigrant workers" paid substantially less than 

prevailing, i.e., union wages and benefits, thereby "destroying" 

the fair wages and living standards of area tradesmen. To 

distribute the handbills, petitioner's representatives stood on 

the sidewalk and walkway in front of a model condominium. But 

Leslie Homes would not permit the distribution of the handbills 

on its property and, consequently, it directed the handbillers to 

leave. They refused to leave until the local police at Leslie 

Homes's request directed them to do so. Subsequently, they 
4 

distributed the handbills on a public road abutting Leslie 

Homes's property. 

 These events led petitioner to file an unfair labor 

practice charge with the Board, which filing resulted in the 

Board's General Counsel issuing a complaint on September 27, 

1990, contending that Leslie Homes violated section 8(a)(1) of 

the NLRA by calling the police to eject petitioner's handbillers. 

Inasmuch as the parties stipulated to the facts, they waived a 

hearing before an administrative law judge. Consequently, the 

Board transferred the proceeding directly to it. While the 

matter was pending before the Board, the Supreme Court decided 

Lechmere, Inc. v. NLRB, 502 U.S. 527, 112 S.Ct. 841 (1992), which 

involved issues similar to those here. Predicated on Lechmere, 

the General Counsel moved to dismiss the complaint. The Board, 

in a split decision on January 25, 1995, issued its Decision and 

Order dismissing the complaint. The petitioner then initiated 

the proceedings now before us. 

II. STANDARD OF REVIEW 

 The parties dispute the standard of review. The 

petitioner contends that the Board decided the matter on legal 

grounds by interpreting and applying Supreme Court precedent and 

it thus contends that in this case we "exercise plenary review of 

[a] question[ ] of law." Tubari Ltd. v. NLRB, 959 F.2d 451, 453 

(3d Cir. 1993). It also cites NLRB v. Greensburg Coca-Cola 

Bottling Co., 40 F.3d 669, 673 (3d Cir. 1994), and Furniture 

Renters of America, Inc. v. NLRB, 36 F.3d 1240, 1248 (3d Cir. 
5 

1994), in support of this contention. On the other hand, the 

Board urges that our review is deferential both as to the Board's 

conclusions of law and its application of the law to the facts. 

It cites NLRB v. Local Union No. 103, 434 U.S. 335, 350, 98 S.Ct. 

651, 660 (1978), and Universal Camera Corp. v. NLRB, 340 U.S. 

474, 488, 71 S.Ct. 456, 465 (1951), in support of this 

contention. We will not linger on the point, because even 

exercising plenary review we agree with the Board and thus will 

deny the petition. 

III. DISCUSSION 

 As is often the situation in labor law, this case 

arises at the intersection of two claims. On the one hand, 

Leslie Homes, at common law and thus under Pennsylvania law, has 

the general right to decide who may come on to its property. On 

the other hand, under section 7 of the NLRA, 29 U.S.C. § 157, the 

right of employees "to self-organization, to form, join, or 

assist labor organizations, to bargain collectively through 

representatives of their own choosing, and to engage in other 

concerted activities for the purpose of collective bargaining or 

other mutual aid or protection" includes union activity intended 

to protect the area wage and benefit standards that a union has 

negotiated for its members. Giant Food Markets, Inc. v. NLRB, 

633 F.2d 18, 23 (6th Cir. 1980). "Area standards" activity, such 

as that involved in this case, is intended to protect wage and 

benefit standards by exerting pressure on nonunion employers with 

a competitive advantage over union employers who pay higher 
6 

wages. Sears, Roebuck & Co. v. San Diego County Dist. Council of 

Carpenters, 436 U.S. 180, 206 n.42, 98 S.Ct. 1745, 1762 n.42 

(1978). Thus, in this case the conflict is obvious: petitioner 

sought to engage in activities sanctioned under the NLRA on 

property where Leslie Homes exercised its property rights to 

exclude petitioner's representatives. 

 The Supreme Court first balanced the property rights of 

an employer with its employees' rights to engage in concerted 

activity in Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 

S.Ct. 982 (1945). There it held that generally an employer can 

be compelled to allow its employees to distribute literature on 

its property. However, in NLRB v. Babcock and Wilcox, 351 U.S. 

105, 112, 76 S.Ct. 679, 684 (1956), the Court distinguished 

Republic Aviation and held that in general an employer cannot be 

compelled to allow nonemployee organizers to distribute union 

literature on its property. Id. at 112, 76 S.Ct. at 684. But 

Babcock included an exception that the employer must grant access 

if nonemployees may not by other reasonable methods communicate 

with the employees.1 

 It is not surprising that the Board frequently has 

addressed the issues raised by unions' reliance on section 7 to 

pursue their activities on employers' property. Ultimately, in 

Jean Country, 291 NLRB 11 (1988), it determined that it would 

apply a balancing test to accommodate an employer's and its 

 

1The Court also indicated that the employer may not discriminate 

against the union if it allows other distributions on its 

property. Babcock, 351 U.S. at 112, 76 S.Ct. at 684. We are not 

concerned with that situation in this case. 
7 

employees' interests. In this process, the Board would consider 

"the availability of reasonably effective alternative means [of 

exercising the section 7 rights] as especially significant." Id. 

at 14. As might be expected when a balancing test is applied, 

the Board thought that the standards governing the application of 

the balancing test would be developed in an evolutionary process. 

 The regime of Jean Country did not long survive. In 

Lechmere, Inc. v. NLRB, 502 U.S. 527, 112 S.Ct. 841, the Supreme 

Court addressed a situation in which Lechmere, the employer, 

barred nonemployee union organizers from its property. The 

organizers had been placing handbills on the windshields of cars 

in a parking lot used by employees. The Board found that 

Lechmere's actions constituted an unfair labor practice and 

ordered Lechmere to cease and desist from barring the union 

organizers from the parking lot. The Court of Appeals for the 

First Circuit denied Lechmere's petition for review and enforced 

the order. Lechmere, Inc. v. NLRB, 914 F.2d 313 (1st Cir. 1990). 

 The Supreme Court reversed. It pointed out that by its 

plain terms the NLRA confers rights only on employees and not on 

unions or their nonemployee organizers. 502 U.S. at 531-32, 112 

S.Ct. at 845. The Court then indicated that, in Babcock, it had 

recognized that section 7 of the NLRA "may, in certain limited 

circumstances, restrict an employer's right to exclude 

nonemployee union organizers from his property." Id. at 532, 112 

S.Ct. at 845. Nevertheless, "[a]s a rule . . . an employer 

cannot be compelled to allow distribution of union literature by 

nonemployee organizers on his property." Id. at 533, 112 S.Ct. 
8 

at 846. The Court said that neither Central Hardware Co. v. 

NLRB, 407 U.S. 539, 92 S.Ct. 2238 (1972), nor Hudgens v. NLRB, 

424 U.S. 507, 96 S.Ct. 1029 (1976), modified "Babcock's holding 

that an employer need not accommodate nonemployee organizers 

unless the employees are otherwise inaccessible." Id. at 534, 

112 S.Ct. at 846. The Court next pointed out that in Sears, 

Roebuck & Co. it had held "that arguable § 7 claims do not preempt state trespass law, in large part because the trespasses of 

nonemployee union organizers are 'far more likely to be 

unprotected than protected.'" Id. at 535, 112 S.Ct. at 846-47. 

 The Court then considered Jean Country which it 

described as representing "the Board's latest attempt to 

implement the rights guaranteed by § 7." 502 U.S. at 535, 112 

S.Ct. at 847. The Court said the Board concluded in Jean Country

"that it was appropriate to approach every case by balancing § 7 

rights against property rights, with alternative means of access 

thrown in as nothing more than an 'especially significant' 

consideration." Id. at 538, 112 S.Ct. at 848. But the Court 

rejected Jean Country, holding that "[s]o long as nonemployee 

union organizers have reasonable access to employees outside an 

employer's property, the requisite accommodation has taken place. 

It is only where such access is infeasible that it becomes 

necessary and proper to take the accommodation inquiry to a 

second level, balancing the employees' and employers' rights." 

Id. 

 Lechmere clearly is controlling here. In this case the 

Board assumed, without deciding, "that Lechmere permits a union 
9 

to show that an employer's customers are not reasonably 

accessible by nontresspassory methods, and that union 

representatives therefore may be entitled to engage in area 

standards activities on the employer's property." 316 NLRB 123, 

129 (1995). It concluded, however, "that reasonable alternative 

means were available to the [petitioner] for communicating its 

area standards message to potential customers of [Leslie Homes]." 

Id. at 131. The petitioner expressly disclaims challenging this 

finding. Brief at 5. Consequently, we are constrained, as the 

petitioner itself asserts, simply to determine whether the Board 

applied the correct legal standard because the facts are not in 

dispute. 

 On this point we have no doubt. It is beyond argument 

that Lechmere was concerned with protecting private property 

interests. We can conceive of no reason why this policy would be 

any less compelling in a case in which a union was engaged in 

area standards handbilling than in a case where the union was 

engaged in direct organizational activity. Indeed, it might be 

supposed that, if anything, the employer's rights would be 

greater when area standards handbilling is involved. In this 

regard we observe that whereas the interests of potential 

customers of the employer are tangential to the dispute between 

the employer and the union, the employer's employees have a 

significant interest in a union's organizational activity. See

Sears, Roebuck & Co., 436 U.S. at 206 n.42, 98 S.Ct. at 1762 n.42 

("[S]everal factors make the argument for protection of 

trespassory area-standards picketing as a category of conduct 
10 

less compelling than that for trespassing organizational 

solicitation.).2

 Petitioner seeks to avoid this result by playing on the 

distinction between direct and derivative rights in section 7. 

Petitioner points out that in Lechmere, the nonemployee union 

organizers were asserting an indirect right of access to the 

employer's property in order to encourage the employees to 

organize. Lechmere, 112 S.Ct. at 846. This derivative right is 

based on the fact that "[t]he right of self-organization depends 

in some measure on the ability of employees to learn the 

advantages of self-organization from others." Babcock, 351 U.S. 

at 113, 76 S.Ct. at 685. The present case is distinguishable, 

petitioner contends, because here the union organizers were 

exercising a different section 7 right altogether, namely, their 

right as the representatives of a group of employees to engage in 

concerted activities for their mutual aid and protection. 

Petitioner concludes from this that Lechmere does not control 

 

2We note that our opinion accords generally with the reading of 

Lechmere in other circuits. The Court of Appeals for the Sixth 

Circuit recently emphasized that "[u]nder the § 7 hierarchy of 

protected activity imposed by the Supreme Court, non-employee 

area-standards picketing warrants even less protection than nonemployee organizational activity." NLRB v. Great Scot, Inc., 39 

F.3d 678, 682 (6th Cir. 1994). The Court of Appeals for the 

Ninth Circuit has refused even to apply Lechmere's 

"inaccessibility exception" where nonemployees target customers 

as opposed to employees. Sparks Nugget, Inc. v. NLRB, 968 F.2d 

991, 997-98 (9th Cir. 1992). Of course, we have no reason to 

consider whether the "inaccessibility exception" could apply in 

this case, as petitioner does not challenge the Board's finding 

that petitioner had other means to communicate with Leslie 

Homes's customers. 
11 

this case and that we should remand the cause to the NLRB for 

reconsideration.3

 We decline to read Lechmere so narrowly. The question 

is not whether the right is described more aptly as direct or 

derivative, but whether the private property rights of an 

employer must give way to the rights of nonemployee interlopers. 

We believe that primary thrust of Lechmere was to reemphasize the 

protection of employers' private property rights against 

unwarranted intrusions by nonemployees. The "distinction 'of 

substance'" is between the employees of the employer who is 

asserting his property rights and individuals who do not work for 

that employer but seek access to his property. Lechmere, 112 

S.Ct. at 848 (citing Babcock, 351 U.S. at 113, 76 S.Ct. at 684). 

In other words, the rule tracks the rather common-sense notion 

that an employer has greater rights against outsiders and 

strangers to his property than he has against those he invites to 

work for him. 

 The case law in this area consistently has analyzed 

these issues in terms of property owners versus interlopers, and 

we believe that the protections afforded property owners against 

trespassory invasions apply whether the outsiders are union 

organizers representing employees from other businesses or union 

organizers acting independently. The case finally gets down to 

this easily understandable rule of law: a nonemployee does not 

 

3The Board in its brief suggests that Lechmere itself involved 

direct rather than derivative rights. In view of our conclusions 

we do not reach this point and instead will treat that case as 

involving derivative rights. 
12 

have a right of access to the employer's property, at least if he 

has reasonable alternative means to exercise his section 7 rights 

whether they are direct or derivative. 

 The petition for review of the Decision and Order of 

January 25, 1995, will be denied.