# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 12, 2005 Decided June 28, 2005

No. 04-1172

ITT I NDUSTRIES

, I NC

., P ETITIONER

v.

N ATIONAL L

ABOR R ELATIONS B OARD

, R ESPONDENT

I NTERNATIONAL U

NION

, U

NITED A

UTOMOBILE

, A

EROSPACE &

A GRICULTURAL I MPLEMENT W ORKERS OF A MERICA

, AFL-CIO,

I NTERVENOR

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 Coun sel, J ohn H. Ferguson

, Associ ate General Counsel, A ileen A. Armstrong

, Deputy

Associate Gener al Counsel, and L inda Dreeben

, Assistant

General Counsel.

James B. Coppes s argued the cause for intervenor. With

him on the brief were Lynn K. Rhinehart and Blair K. Simmons

.

Before: R A NDOLPH

, G

ARLAND

, and R

OBERTS

, Cir

cuit

Judges

.

Opinion for the court filed by Circuit Judge G ARLAND

.

G ARLAND

, 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

p ermit 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 interp reted the Act, we deny the petition and grant

the Board’s application for enforcement of its order.

I

ITT Industries, Inc. is the paren t company of ITT

Automotive, Inc., an automotive parts manufacturer that

operates ten plants, t

hree of which are located in East Tawas,

Tawas City, and Osco da, Michigan. These are known

collectively

as the “Northern Plants,” and each is within a short

commuting distance of the others. I TT Industri es, Inc. , 341

N.L.R.B. No. 118, at 1 n.4 (May 13, 200 4). The East Tawas

facility (the site of the handbilling in this case) is situated

between the other two, 14 miles from the Oscoda facility (the3

1 Just prior to the date of the scheduled election, and after filing

the unfair labor practice c harge that gave rise to this case, the UAW

withdrew its election petition. plant at which the handbillers are employed) and 5-6 miles from

the Tawas City facility. I d . at 1. The East Tawas and Tawas

C ity plants have about 180 employees each, while the Oscoda

plant has about 600 employees. I d. ITT has from time to time

transferred employees from one plant to another. I d. a t 1 & n.5.

In 1994, the International Union, United Automobile,

Aerospace and A gricultural Implement Workers of America

(UAW) launched a campaign to organize employ e es of the

Northern Plants. It lost a representation election in March 1995,

but the National Lab or Relations Board (NLRB) found that ITT

had improperly interfered wit h 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

r epresentation election for July 1998. ITT stipulated that the

appropriate barg

aining unit would encompass nonsupervisory

employees from all three plants. S ee ITT Industries, Inc. , 331

N.L.R.B. 4, 6 (2000) ( First ITT Decision ). 1

In the spring of 1998, employe es of ITT’s Oscoda plant

twice attempted to distr

ibute handbills and to solicit signatures

in the parking lo t of the East Tawas facility. Both incidents

occurred at approximately 6:00 a.m. Although the handbillers

identi fied 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 admin i strative 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 test4

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

, pro vides: “[E]xcept where

justified by busines s 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. S ee First ITT

Decision , 331 N.L.R.B. at 4.

ITT petitioned for judicial review, contending that the

Board had overstepped its a uthority by granting to off-site

employees more than the limited ac cess 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 f rom company property,

unless employees are oth

erwise “beyond the reach of reasonable

union efforts to co mmunicate with them.” 351 U.S. 105, 113

(1956); see Lechmere, Inc. v. NLRB , 502 U.S. 527, 534 (1992).

Nonemployees’ acc ess is so limited because “any right they may

have to s olicit on an employer’s property is a derivative of the

right of that e mployer’s employees to exercise their organization

rights effectively.” S ears, 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 h ave applied B

abcock

, not TriCounty , to resolve the UAW’s charges.

This court reviewed the Bo ard’s decision in I TT 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 inter pretation5

depends in large part on the Board’s con sidered justifications for

extending greater access rights to trespassing employees than

trespassing nonemployee u nion organizers.” I

d. at 1004.

Because we c oncluded that the Board had failed -- in several

respects detai

led in Part II below -- “to engage in considered

analysis and exp lain its chosen interpretation,” i d.

, 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

c ontrast to nonemployee union organizers) have a

nond e rivative access right, for organizational purposes,

to their employer’s facilities; (2) . . . an employer may

well have heightened private property-right c oncerns

when offsite (as opposed to onsite) employe es 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, nonwork

ing areas of the employer’s property,

except where justified by business reasons, which may

inv olve considerations not applicable to access by

off-duty, onsite employees.

Id. at 648. The Sixth Circuit enforced the Board’s H illhaven

order, concluding that the Board had rem e died the deficiencies

identified in our I

TT Industries opinion, and that it had

reasonably balanced the off-site employees’ sec t ion 7 rights

against the employer’s private property interests. F irst

Healthcare Corp. v. NLRB , 344 F.3d 523, 538, 539-40 (6th Cir.

2003).6

The NLRB applied the H illhaven framework when it

considered our ITT In dustries decision on remand in 2004. S ee

ITT Industries, Inc.

, 341 N.L.R.B. No. 118, at 4 (May 13, 2004)

( ITT Remand

Decision )

. First, it determined that the Oscoda

e mployees 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.” I

d. Next, the Board examined ITT’s business

justification

-- namely, physical and personal security -- for its

no-access policy. I

d. at 5. Finally, the Board concluded that,

although “the record demonstra tes 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 th us “failed to present a business

reason sufficient to justify prohi biting [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 revi ew, ITT raises essentially two points.

First, it contends that the NLRB’s H illhaven test is unresponsive

to our remand and is an unreasonable interpretatio n of the

NLRA. Second, it argues that, even if the H illhaven test is

proper, i ts application to the instant case was unreasonable and

unsupported by substantial e vidence. 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 o f our remand in I TT

Industries

.

II

Section 7 of the NL

RA provides that employees “shall have

the right to self-organization, [and] to form, join, or assist labor

o rganizations.” 29 U.S.C. § 157. Section 8(a)(1) declares that

it “shall be an unfair labor practice for an employe r . . . to

interfere with, restrain, or coerce em ployees in the exercise of7

the rights guaranteed in” section 7. I d. § 15 8(a)(1). Under the

Act, “employee” is de fined to “include any employee, and shall

not be limited to the employees of a particular employer.” I d. §

152(3).

“Like other adm

inistrative agencies, the NLRB is entitled

to judicial deference when it interprets an ambiguous provision

of a statute that it administers.” I TT 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 I TT

Industries

, section 7 is a m biguous

-- for purposes of this case

--

because it “does not itself speak of access rights, mu ch less the

access rights of off-site employees.” I d. at 1000. That

ambiguity “counsel[s] Chevron deferenc e” -- unless “courts

have settled on [the] statute’s clear meanin g,” in which event we

must “adhere to that determina tion under the doctrine of s tare

decisis .” I

d. (quoting Lechmere

, 502 U.S. at 536 -37). And as

we further noted, the courts have not set tled 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 th

at would be lawful if pursued by onsite employees.” Id.

Our decision in I

TT Industries traced the two lines of

judicial opinions that leave the gap now confronting us. The

font of the first line was R epublic Aviation Corp. v. NLRB

, 324

U.S. 793 (1945). There, the Supreme Court affirmed the

NLRB’s ruling that an employer may not proh ibit distribution of

organizational literature by of f-duty employees in nonworking

areas, without a showing that the ban is necessary to maintain

plant discipline or production. S ee id. at 803 n.10, 804; see also

Eastex, Inc. v. NLRB

, 437 U.S. 556, 570-71 (1978). The8

NLRB’s Tri-County balancing test followed from Republic

Aviation

. S ee Tri-County

, 222 N.L.R.B. at 1089 (relying on

Bulova Watch Co.

, 208 N.L.R.B. 798, 798 (1974), w hich

adopted the dissent’s interpretation of Republic Aviation in GTE

Lenkurt, Inc. , 204 N.L.R.B. 921, 923 (1973)).

The second line of preceden ts began with B

abcock

, in

which the Supreme Court held that the Board cannot order

employers to g

rant nonemployee union organizers access to

company property, a

bsent a showing that employees are

otherwise inaccessible through reasonable ef forts. S ee Babcock

, 351 U.S. at 112. There, the Court faulted the Board for

“fail[ing] to mak

e a distinction between rules of law applicable

to employees and those appl icable to nonemployees.” I d. at

113. As we explained in ITT Industries

, Babcock stands for the

proposition that “nonemployees’ access r ights are merely

derivative of on

-site employees’ organizational rights;

nonemployees enjo y 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 t h e union activities of

employees and nonemplo yees. In cases involving

e mployee activities, we noted with approval, the Board

“balanced the conflicting

interests of employees to

receive information on self-or ganization on the

c o mpany’s property from fellow employees during

nonworking time, with the employer’s righ t to control

the use of his property.” In cases involving9

nonempl oyee activities (like those at issue in Babcock

itself), however, the Board was not permitted to engage

i n that same balancing (and we reversed the Board for

having done so).

Id. at 1002 (quoting Lechmere

, 50 2 U.S. at 537 (quoting

B abcock

, 351 U.S. at 109-10, 113) (citations omitted )).

Lechmer e , we said, “reaffirmed B abcock ’s central thesis that §

7 extends only derivative access rights to n onemployee union

organizers.” Id. at 1002-03.

This foray into the case law persuaded us tha t 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 “betwe en the union activities of

empl oyees and nonemployees,” L echmere

, 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 B

abcock

, Hudgens

, Republic

Aviation

, Easte

x , or L echmere

. And these cases

certainly do not stand for the proposition that all

trespassers, whether the y 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 conclu ded 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] ass ess the reasonableness of the Board’s

decision to apply the Tri-County test to off-site empl oyees.” I d.

at 1004. First, the Board had failed “even to acknowledge that10

the question of off-site employee access rights was an open

one,” but rather had “decided sub silentio that § 7 guarant e es all

off-site employees

. . . some mea sure of free standing,

nonderivative access rights.” I d. Second, “[n]oticeably absent

from [the Board’s] discu ssion [was] any mention of the

employer’s property righ ts or the different interpretive

considerations p resented by trespassing employees.” I d. 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.” I

d.

at 1004. On the other, the Board had failed to consider the

“heightened propert y concerns” -- involving “security, traffic

control, personne l

, and like issues”

-- that arise when off-site

rather than on-s ite employees seek access. I d. at 1005. Finally,

the Board had also “failed to explain why the scope of [the offsite employees’] rights should be defined by the same TriCounty bala ncing test used to delineate the scope of on-site

employee access rights.” I d. We warned that “[i]f, on remand,

the Board dete rmines that § 7 indeed extends nonderivative

access rights to off-site empl oyees,” it would have to “adopt a

balanc i ng 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 d id not bar the NLRB from concluding, on

remand, that off-site employees p ossess nonderivative section 7

rig hts to access outside, nonworking areas of their employer’s

propert y, 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 rea ffirm its prior

deci sion, it would have to: (1) explain why it believes off-site

employees possess a nonderivative right of access unde r section11

7; (2) take into

consideration the property interests of the

employer; and (3) dev

ise 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 f ollowing Part, we consider whether the Board

satisfied these

requirements of our remand, and whether the

balancing test it adopted represents a reasonable int erpretation

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

Hill haven and incorporated into the remand decision. As we

said in ITT Industries , “the Board is not obligated to justify its

interpretation anew with ever y 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

s atisfactorily 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 or g anizers) possess a nonderivative right of access

under section 7. The Board’s post-remand decisions at last

addressed the point directly, conclud ing that off-site employees

do “have a nonderivative access right, f or organizational

purposes, to their employer’s facilities.” I TT 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 na rrow sense: ‘employees

of a particular employer’ (in the Act’s words), that is, employees

of the employer who would exclude them from it s 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 p a rticular employer.” I d.

Moreover, “when offsite employees seek to or ganize similarly

situated employees at another employer facil ity, the employees

seek stren gth in numbers to increase the power of their union

and ultimately to improve the ir own working conditions.” I TT

Remand Decision , 341 N.L.R.B. No. 118, at 3. This reasonably

e xplains the Board’s conclusion that the right claimed b y such

off-site employees is personal rather than d erivative: employees

who seek to make common cause with similarly situated

employees of the same e mployer are seeking to advance their

own interest s -- 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 situ

ated 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

o f ambiguity in the text of H illhaven

, with some passages

making no me ntion of a similarity requirement, s ee, 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.

, i d

. at 64813

(“ When an offsite employee seeks to encourage the organization

of similarly situated employ ees . . . , the employee seeks to

further his own welfare.” (emphasis added)).

But we sit in judgment on the NLRB’s decision in the I TT

remand, not on the decis ion in H illhaven per se. And in

describing its understanding of Hi llhaven , the I TT remand

decision certainly appeared to treat a findin g of similarity as a

cond i tion precedent for a finding that the handbillers had

nonderivativ e section 7 rights -- itself a prerequisite for

application of Hillhaven ’s balancing tes t

. S ee ITT Remand

D ecision , 341 N.L.R.B. No. 118, at 3 (“With respect to the

section 7 rights of offsite employees, the Boar d stressed [in

Hillhaven ] that when o ffsite employees seek to organize

similarly si

t uated employees at another employer facility, the

employees seek strength in num bers . . . ultimately to improve

the ir own working conditions.” (emphasis added)). More

important, a s we discuss in Part IV, there is no doubt that in this

case the NLR B’s application of the H illhaven test turned on the

fact t hat the Oscoda and East Tawas employees were similarly

situated. That is a sufficient basis for us to conclude that there

is a reason

able connection between the rationale the Board

offered and the test it applied in this case.

2. The second problem that I TT Industries discerned in the

NLRB’s first ITT decision wa s 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. H illhaven

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 wei

ghing 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’s14

2 In its briefs, ITT argued that on-site e mployees are unlike offsite employees because the former are “rightfully on the employer’s

property [and] do not become trespassers by engaging in Section 7

a c tivities.”

Pet’r Reply Br. at 5; s ee 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 emplo yer’s property when they handbill at

a place or time forbidden by their employer. S ee R ESTATEMENT

(S ECOND ) 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 con dition or restriction is complied with”); i d. § 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 activ i ties on

company property, the decisive questi on is still whether section 7

entitles off-site employees to some form of access as well. C f.

Lechmere

, 502 U.S. at 531 (noting that “§ 7 of th e NLRA may, in

certain limited circumstances, restrict an employer’s right to exclude

[even] nonemployee union organizers from his property ”); N ew York

New York, LLC v. NLRB

, 313 F.3d 585, 589 (D.C. Cir. 2002) (noting

that it is e mployees’ section 7 rights that permit them to organize on

employer property, not the operation of trespass law). 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 employee s” -- a tension that cannot be

resolved merely by reference to th e 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

prop er accommodation between the two.’” 424 U.S. at 521

(quoting Central Hardwa re Co. v. NLRB , 407 U.S. 539, 54315

(1972)). “What is ‘a proper accommodation’ in any situation

may largely depend up on 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 im plicates some distinct

considerations”

from that of either nonemployees or on-site

employees. H

illhaven

, 336 N.L.R.B . at 649. Although “[o]n

o ne view, [off-site] employees are

. . . ‘strangers’ to the

employer,

. . . [o]f critical importance, on the other hand, is th e

fact that an employm

ent relationship exists between them and

the employer, which distinguishes offsi te employees from the

ordinary trespasser, who truly is a stranger.” I d. “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 regarde d as trespasser), independent of

its property rights.” I

d. That ability to exercise control provides

a reasonable basi s for the Board’s conclusion that permitting

a ccess by off-site employees trenches less seriously on the

employer’s property interests than would permitting ac c ess by

nonemployees. As the Board explained: “Surely it is easier for

an employer to regulate the conduct of an employee

-- a s a legal

a nd a practical matter

-- than it is for an employer to contr ol a

complete stranger’s infringe ment on its property interests. The

employer, after all, controls the employee’s livelihood.” I TT

Remand Decis i on

, 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 employ

er dealing with offsite employees faces

precisely the same situation as it w ould when confronted by the

access claims of onsite employees.” H illhaven

, 336 N.L.R.B. at16

649. The Board recognized that the “employee status of offsite

employees

. . . may be more difficu lt to determine, at least

initially,” and t

hat there “may be other, unique problems

involved, as well,” cit ing our statement in I TT Industries that the

“employer’s right to control the disputed premises likely

implicates secur ity, traffic control, personnel, and like issues

that do not arise when only on-site employee access is

involve d.” I

d. 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 it s property to exercise their Section

7 rights.” I

TT Remand Deci sion , 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 I TT decision

was that it appea red to adopt for off-site employees the same

“balancing t

est 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 of f

site employees are involved. I TT Industries

, 251 F.3d at 1005.

This time, however, the Board did take proper account. Like the

Tri-County test, the Hillhav e n test provides that “[o]n balance,

. . . the Section 7 organizational rights of offsite employees

entitle them to access to th e outside, nonworking areas of the

employer’s property, except where j ustified by business

reasons. ” H

illhaven

, 336 N.L.R.B. at 650 (empha sis added).

But “[i]n weighing those reasons,” the Board promised, “we will

take into account an employer’s ‘pr edictably heightened

property concerns’

. . . whe n offsite, as opposed to onsite,

employees are involved.” Id.

ITT disputes the NLRB’s contention that the H illhaven test

really is different from the Tri-County test applied to on-site17

employees, since

both require the employer to provide access

unless justified by business reasons. H illhaven

, however, not

only promised that the Board would take a ccount of the

employer’s heightened property concerns in the case of off-site

employees, but also declared that the business justific ations for

denying access to off-site employees “may involve

considerations n

ot applicable to access by off-duty, onsite

employees.” I

TT 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 ac c ess for

offsite visiting employees differs, at least in practical effect,

from the Tri-County

test for off-duty, onsite employees.” I d.

(quoting Hillhaven

, 336 N.L.R.B. at 648). For example, under

Hillhaven the heightened problems that access by off-site

e mployees 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 det ermining the employee status of

offsite employees might justify “requir[ing] apparent trespassers

to ide n tify themselves

. . . to determine whether the person

seeking access is, in fa ct, 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 busin ess 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 tha t even if the

H illhaven test is proper, its application to the instant case is18

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))). unreasonable and unsupported b y 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 off site employees were seeking to

organize the East Tawas employees in a single, three-plant unit

which included their own Oscod a plant.” I d. Indeed, the

e mployer had stipulated to the appropriateness of such a unit.

See First ITT Decision

, 331 N.L.R.B. at 6; see also ITT Remand

Deci sion , 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 periodic ally 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 nonderi v ative section 7 rights, was

reasonable. As the Board said, the “offsite employee’s personal

s take in organizing his counterparts at a different employer

facility is clearest where he is , or will be, part of a multifacility

bargaini ng unit that includes onsite employees.” I d. at 4

(quoting Hillhaven , 336 N.L.R.B. at 649).19

4 Cf. Speedrack Prods. Group, Ltd. v. NLRB , 114 F.3d 1276, 1278

(D.C. Cir. 199 7) (“An employee is eligible to vote in a representation

ele c tion if she shares ‘a community of interest’ with the other

employees in the unit. The Board examines various factors to

d etermine if a community of interest exists, such as the similari ty of

wages, benefits, skills, duties, working conditions, and supervision of

the employee . . . .”). ITT correctly points out that, in H illhaven

, the Board

declared that “a similar self-interest” can arise “even where the

unorganized employees may be in a different ba rgaining 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 employ

e es would be appropriate, we cannot dispute

the rea sonableness of the Board’s conclusion that “the Section

7 rights at issue h ere are indeed substantial.” I TT 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. S ee id

. ITT had “prohibited access to its

parking lot to the Oscoda employees base d on security

considerations.” I

d. 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.” I

d.

These in volved 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 employ

ee, 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, with20

the exception of relatives and friends of empl oyees. (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. S ee id. at

4.) The Board also found that the employer had advanced

“legit imate security concerns” that would have to be considered

in assessing whether off-site employees could be barred. I d.

“[R]easonable measures to protect against legitimate securi t y

threats do not,” the Board said, “‘take a back seat’ to employees’

Section 7 rights.” I

d. at 5. Thus, the question was not whether

any limitations on access by o f f-site employees were

permissible, but whether ITT’s concerns “justif[ied] the t otal

exclusion of [its] offsite employees from its parking lot.” I d. at

4 (emphasis added); see id. at 5.

3. Applying the Hillhaven b alancing test, the Board

concluded that ITT’s security concerns di d not justify wholly

denying its off-site em

ployees 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.” I d. at 4. The Board noted that the

handbillers had a nnounced 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.” I

d. 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.” I d. 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. I

d. 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

“attemp ted to handbill at 6 a.m., a time when there was a lot of

activity in the pa rking lot.” I d. 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 evide nce 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 ra ise any other property

concerns. There was “no evidence, or claim, that the handbillers

would cau s e any disruption to traffic in the parking lot.” I d.

Nor did the record “demonstrate the possibility of any unique

logistical problems that m ight 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 tailore d to address its concerns

about protecting it s property against vandalism or violence

against its onsite emplo yees.” I d. 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 exam ining ITT’s security

c oncerns, the Board stated that it was “also significant that [ITT]

d id not install security cameras on its property, did no t employ

security g uards to protect the premises, and did not request the

police to patrol the area.” I d. ITT maintains that this statement

reflects the Board’s own busine ss judgment that it would have

been better to adopt those security measures, rather than the noaccess 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 de cision to

install cam eras or hire security guards is an issue of [ITT’s] own

business judgment,” and insisted that “we do not seek to

substi tute our judgment for that of [ITT].” I d. An ITT

supervisor had testified

that, instead of installing cameras or

hiring guards, ITT relied on “an informal practice whereby

‘everyb o dy kind of looks out for each other.’” I d. The Board

found that ITT’s “claimed need” for a rule totally excluding offsite employees “must b e 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.’” I d.

(emph asis 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 ass erted rationale -- security in the lot -- since

there was sufficient activity at that time to ensur e that “look[ing]

out for one another” would take care of the problem.

ITT also contends that the availability of ot her means of

communicati

ng 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,

howeve r, “inquiry into such considerations ‘is made only when

nonemployees are on the employer’s pro perty.’” I d. 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 sectio n 7 rights not possessed by

nonemployees, see supra Part III, it was also reasonable for the

NLRB to decide not to app l y the same test to off-site employees

that it applies to nonemployees.23

5 “Because i

t is to the Board that Congress entrusted the task of

‘applying the Act’s general prohibitory language in the light of the

infini te 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 statut ory provisions.” C urtin 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); R egal

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. V

The Supreme Court “has emphasized often that the NLRB

has the primary responsibili t y for developing and applying

national labor policy.” N LRB 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.” I

d. at 786-87. ITT disparages this declaration of

judicial deferenc e as a “tired mantra.” Pet’r Reply Br. at 2. But

while there is no question that it is oft-repeated, 6 that hardl y

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 eva l uating the efforts of off-site employees to

conduct organizing activity in outside, nonworking ar eas of their

employer’s property, and that the Board rationally applied that24

framework to the circumstances of this case. Accordingly, we

deny ITT’s petition for review and grant the NLRB ’s crossapplication for enforcement.

So ordered

.