Retail Industry Picketing and Hand Billing: Access Rights of Non-Employee Union Representatives, Striking, and Off-Duty Employees to Shopping Malls, Parking Fields, Stores, and Other Private Property

Retail Industry Picketing and Hand Billing: Access Rights of Non-Employee Union Representatives, Striking, and Off-Duty Employees to Shopping Malls, Parking Fields, Stores, and Other Private Property

Reprinted from The Labor Lawyer, Vol. 17, No. 1, Summer 2001, a publication of the American Bar Association Section of Labor and Employment Law

Laurie Nicole Robinson and Evan J. Spelfogel*

I.   Introduction

Collective bargaining is a cornerstone of national labor policy. In order to gain bargaining rights, a union must first gain access to employees, and those employees need to be able to communicate their union sentiments to others.

Union representatives often attempt to organize retail store employees on an employer's premises — either inside or near a store entrance, in the parking lot, or on the sidewalks in and around a store or shopping mall. Unions often seek to enlist the support of on-duty and off-duty employees in these efforts. Tactics may include distributing union literature and consumer hand billing. Employees may be asked to cease work and customers to cease doing business with the targeted employer because either the employer is non-union or it allegedly pays its employees substandard wages and benefits. Sometimes unions protest alleged unfair labor practices by an employer or unsafe or dangerous work conditions.

Although section 7 of the National Labor Relations Act (NLRA) guarantees to employees the right to organize and join unions for their mutual aid and benefit (or to refrain from such activities),1 employers have certain property rights inherent in their capital investment, as well as the right to maintain production and discipline. Over the years, the clash between employee and employer rights has been the subject of numerous administrative and judicial attempts at achieving the proper balance necessary to harmonize the divergent principles.

II.   Non-Employees' Rights

A.   Babcock & Wilcox

Access rules pertaining to non-employees have traceable origins to the U.S. Supreme Court's 1956 decision in NLRB v. Babcock & Wilcox Co.2 In Babcock, the Court addressed whether an employer could deny non-employee union organizers access to its property. Here, the employer had refused to permit non-employee union organizers onto the company parking lot to distribute literature to its employees. The National Labor Relations Board (NLRB) had found that the organizers had no practical alternative to entering company property to hand bill employees because the plant's physical location made solicitation from public property impossible. The employer defended its refusal on the grounds that its rule against permitting strangers on its private property had been consistently applied and that the distribution would have littered its property. The NLRB held that the employer had violated section 8(a)(1) of the NLRA because the union's alternative opportunities to reach the employees — personal contact in the community or at home, by telephones, letters or advertised meetings — were "less effective" than communications at the work site.3 Because no employees were engaged in the solicitation, it was not the employees' section 7 right to speak that was at issue, but their section 7 right to hear. The NLRB balanced the employees' right to hear against the employer's property right to secure its plant from strangers and found against the employer.

The Supreme Court reversed the NLRB's decision. The Court laid down the basic principle that an employer could always prohibit access to its premises by non-employees, provided "reasonable" alternative channels of communication were available and the employer's policy did not discriminate between protected union and nonunion activities (such as community fundraising).4 Babcock set out the following standards:

  • The "employer may validly post [its] property against nonemployee distribution of union literature if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message."5
  • The employer's posting of its property must not "discriminate against the union by allowing other distribution."6
  • "The right of self-organization [under the NLRA] depends in some measure on the ability of employees to learn the advantages of self-organization from others."7
  • These self-organizational rights under the NLRA and the preservation of private property rights are both guaranteed by the federal government.8
  • There must be an accommodation between these two sets of rights "with as little destruction of one as is consistent with the maintenance of the other," with the proper balancing between the two sets of rights to be made by the NLRB.9
  • "[W]hen the inaccessibility of employees makes ineffective the reasonable attempts by non-employees to communicate with [employees] through the [normal] channels, the [employer's] right to exclude [non-employees] from [the employer's] property [must] yield to the extent needed to permit communication of information [to the employees] on the right to organize."10

After the Babcock & Wilcox decision, unions argued that their representatives should have access to company premises if solicitation on public property near the plant was impractical or if employee homes were scattered throughout a large metropolitan area. However, the NLRB ruled against a right of access for union organizers in these circumstances.11

B.   Logan Valley, Tanner, and Hudgens

In the ensuing years, the NLRB and the courts have tussled back and forth in an attempt to balance retail business and shopping center private property rights with employee section 7 rights. In earlier decisions, the NLRB allowed access to outside organizers based on constitutional freedom of speech. In Logan Valley Plaza, the U.S. Supreme Court held that peaceful picketing in a location that was generally open to the public, such as a shopping center, was protected by the First Amendment.12 In this case, the union picketed inside a large shopping center. Its target was a tenant of the shopping center: a retail store employing a non-union staff. The pickets carried signs and complained that the retail store's employees were not receiving union wages and other union benefits. The Supreme Court of Pennsylvania held that picketing inside the shopping center was trespassing and issued an injunction that required the union to limit picketing to public roads outside the shopping center.13 The U.S. Supreme Court vacated the injunction order.14

In a prior decision in Marsh v. Alabama, the Court had held that a town in Alabama, which was completely owned by a private corporation, had contained all the characteristics and functions of a typical American town and, therefore, was quasi-public.15 Following Marsh, the Court in Logan Valley held that shopping center picketing was constitutionally protected, notwithstanding its occurrence on private property.16

Four years after Logan Valley, the Supreme Court in Lloyd Corp. v. Tanner held that a group of young people who had entered a shopping center to distribute handbills protesting the ongoing military operations in Vietnam were not protected by the First Amendment.17 The Court declined to overturn Logan Valley but distinguished it on the grounds that the communications in Logan Valley related to a store in a shopping center and that the pickets had no other reasonable opportunity to reach their intended audience.

In Hudgens v. NLRB, the Supreme Court went full circle and overruled Logan Valley.18 The NLRB in Hudgens tried to have it both ways — depriving an owner of his property rights on both constitutional and section 7 grounds. The case involved union picketing at a store inside a shopping center. The pickets left when threatened with arrest and the union filed a section 8(a)(1) unfair labor practice charge. The Supreme Court held that there was no constitutional right for a union to picket on private property and expressly overruled Logan Valley on the constitutional issue. However, it did not resolve the section 7 issue.

On the section 7 point, the NLRB continued to rule in favor of granting union access. In Giant Food Markets, Inc., for example, the NLRB permitted area standards picketing and hand billing at the entrance to a grocery store that shared a building with K-mart.19 Giant's former workforce was unionized, but the store was closed and the employees were terminated. When Giant reopened with a nonunion workforce, the union picketed and hand billed the store on private shopping center property, asking the public to boycott the store because its employees received substandard wages and benefits. The property owner demanded that the pickets vacate the property, and when they refused, the owner obtained a state court injunction prohibiting trespassory area standards activity. The union thereafter filed a section 8(a)(1) charge.

The NLRB found that the balance weighed in favor of granting the union access for the following reasons: (1) the area standards activity was protected under section 7; (2) the property in question was shared by at least one other business; and (3) the union's principal intended audience was potential customers. Accordingly, the board held that requiring the picketing and hand billing to be conducted on public property at the parking lot entrances, some 250 feet from the store entrance, "would too greatly dilute the union's message for it to be meaningful."20 The Sixth Circuit refused to enforce and vacated the NLRB's decision.21

C.   Jean Country

After the Hudgens and Giant Food decisions, a number of cases came before the NLRB in which it attempted to balance private property rights with union access rights, generally finding for the unions. On appeal and review, however, the courts were not sympathetic to the board. In Jean Country, the NLRB tried to clarify its balancing test in light of these court rejections and the principles of Babcock & Wilcox and Hudgens.22

Jean Country involved a retail clothing store that was owned and operated by a tenant in a shopping mall. The shopping mall included two large department stores and over one hundred smaller specialty stores generally clustered together and grouped in aisles in the middle of the mall. Union representatives carried signs in the mall, informing the public that store employees were not represented by the union and asked customers not to patronize Jean Country. The union's goal was to persuade customers to shop at other stores in the mall, whose employees were represented by the union. The mall owner and Jean Country requested the police to remove the pickets from the premises.

In its Jean Country ruling, the NLRB changed its standard for access cases. Based on its interpretation of Supreme Court precedent,23 the board declared that in all access cases, the degree to which section 7 rights were impaired through denial of access should be balanced against the degree to which private property rights would be impaired if access had been granted. In addition, the availability of reasonable and "effective" alternative means of communication was to be considered "especially significant" in this balancing process.24

Applying this test, the NLRB found that (1) the picketing was for organizational purposes and to discourage customers from shopping at Jean Country and (2) these purposes were on the weaker end of the spectrum of section 7 rights.25 Notwithstanding, the board found the picketing to be within the protection of section 7. In so finding, the board examined the possibility of the union's reaching customers in a non-trespassory manner but dismissed this as a viable alternative. It was unreasonable, said the NLRB, to require the union to undertake a mass media campaign, particularly because the union would thereby incur great costs and its message would be removed from the "situs."26 Moreover, the board opined, the union message could not be adequately conveyed from the public entrances of the mall. The alternatives would not only dilute the union message, but would also not allow the union effectively to reach "impulse shopper[s]."27 The only way for the union to "effectively" identify and communicate with potential customers would be to picket inside the mall closer to the store. Moreover, the board concluded that private property rights would not be meaningfully impaired.28

Until the U.S. Supreme Court decision in Lechmere, discussed later, the NLRB had consistently applied the Jean Country analysis to grant union access. In most of these cases, the board had determined that the relative ineffectiveness and impracticability of alternative means of communication outweighed the private property interests. In 1992, in Lechmere, Inc. v. NLRB, the Supreme Court overturned Jean Country and criticized the NLRB for failing to adhere to the principles of Babcock & Wilcox and Hudgens.29

D.   Lechmere

In Lechmere, the Supreme Court addressed the issue of access by non-employee union organizers to an employer's private property. Lechmere arose out of an attempt by Local 919 of the United Food and Commercial Workers Union to organize Lechmere employees at a retail store located in a shopping plaza in Newington, Connecticut. Lechmere also owned part of the plaza's parking lot, a section of which was designated as the employees' parking lot. Union representatives entered the parking lot and placed handbills on the windshields of cars parked in the employees' section.

Lechmere removed the handbills and denied the union organizers access to the lot on several occasions. The union representatives then relocated themselves to a public strip of land adjacent to the parking lot and continued their organizing efforts by distributing handbills, picketing, and recording the license plate numbers of cars parked in the employee area of the lot.

The union filed an unfair labor practice charge with the NLRB, alleging that Lechmere had violated the NLRA by barring the non-employee organizers from the property. An administrative law judge found for the union. The board affirmed, relying on the balancing test set forth in Jean Country. The U.S. Court of Appeals for the First Circuit enforced the NLRB's order.30

On appeal, however, the U.S. Supreme Court reversed and held that the non-employee union organizers could be barred entirely from private shopping center premises unless they could show no reasonable alternative means of communicating their message.31 The Court concluded, based on Babcock & Wilcox, that Lechmere did not commit an unfair labor practice by barring non-employee union organizers from the property for the following reasons:

  • An employer could not be compelled to allow non-employee organizers on its property;
  • As stated in Babcock & Wilcox, section 7 "does not protect non-employee union organizers except in the rare case where 'the inaccessibility of employees makes ineffective the reasonable attempts by non-employees to communicate with them through the usual channels' ";32 and
  • The facts did not justify the Babcock & Wilcox inaccessibility exception.

The Supreme Court expressly rejected the NLRB Jean Country approach, saying that the board had misconstrued and misapplied Babcock & Wilcox.33 Henceforth, the Supreme Court said that where there were any alternative means of communication with employees, regardless of how effective those means might be, the union was not entitled to access private shopping mall or store property for organizational or recognition purposes. The Court further stated that in large metropolitan areas, newspapers, radio, and television almost always provided reasonable alternative access; the availability of public sidewalks and a public way less than 500 feet from the target store was itself a reasonable alternative access. Furthermore, the Court held that alternative access may have been reasonable even if it was more expensive or less effective for the union.34

III.   Employees' Rights

So far we have discussed non-employees' rights of access. Different rules apply to employees' access to private store property to assist in union objectives. Moreover, there is an entirely separate body of law that has developed, and it involves the rights of employees to engage in union related solicitation and distribution of union materials in the workplace.

For example, in Seattle-First National Bank, the NLRB applied a balancing approach and ruled that section 7 rights of employees on strike outweighed an owner's property rights.35 In this case, a restaurant's striking employees picketed and hand billed in the foyer of the restaurant until they were ordered to leave the building. The board reasoned that the union's message could not have been effectively communicated unless the pickets had access to the employer's property. Restaurant customers, the board said, became identifiable only as they entered the restaurant. Therefore, access to the restaurant entrance and premises was essential for employees to deliver the message to the intended audience.

A.   Solicitation and Distribution

Generally, cases involving solicitation and distribution by employees are fairly straightforward. In recognition of the fact that employers have an interest in maintaining production and discipline inside the workplace, the NLRB allows restrictions on workplace solicitation by an employer's own employees during working time. Moreover, because of the special difficulties with litter that distribution often creates, an employer may restrict the distribution of literature in working areas of a facility both on and off the employees' working time. These rules are applied to test the legality of an employer's restrictions in the absence of a showing of special circumstances. However, a rule valid on its face may be rendered illegal by disparate application. The adoption by employers of rules limiting solicitation and distribution first received Supreme Court attention in Republic Aviation Corp. v. NLRB.36 In that case, an employee had been discharged for violating the following employer rule, which existed well before the commencement of any union activity at the plant: "[S]oliciting of any type cannot be permitted in the factory or offices."37

The Supreme Court held that an employer could not prohibit employee distribution of union organizational literature on company property in non-working areas or union solicitation during non-working time, absent a showing that such a ban was necessary to maintain plant discipline or production. The rationale was, essentially, that while working time was for work, non-working time was the employee's to use without unreasonable restraint, even though the employee was on company property and "on the clock."

In Our Way, Inc., the NLRB subsequently clarified that working time meant periods of actual work and excluded coffee breaks, meals, restroom breaks, wash-ups, and other down time, even though "on the clock."38 The board held that an employer restriction using the term working time was presumptively valid — absent evidence of discrimination — while a restriction using the term working hours was presumptively invalid.

Under the Supreme Court's special circumstances exception in Republic Aviation, the employer carries a heavy burden of proof. Special circumstances, however, may be found on selling floors of a retail department store where close contact with the store's customers and crowded inventory might justify a more restrictive rule or where there is a highly inflammable environment. Following Republic Aviation, employers in retail stores have been permitted by the NLRB to ban union solicitation in all store selling areas during both employees' working and nonworking time (a ban that absent special circumstances would normally be invalid).39

B.   Off-Duty Employees' Rights

The determination of the rights of an off-duty employee depends on whether the off-duty employee is on the interior or exterior of the employer's property. The general rule is that an employer's no-access rule that denies off-duty employees entry to the exterior — parking lots, gates, and other outside nonworking areas — is invalid, except where justified by special business reasons.40

An employer's no-access rule may be valid so long as it "(1) limits access solely with respect to the interior of the plant and other working areas; (2) is clearly disseminated to all employees; and (3) applies to off-duty employees seeking access to the plant for any purpose and not just to those employees engaging in union activity."41

Thus, the NLRB holds that off-duty employees, unlike on-duty employees, are not permitted to engage in union organizing activities inside the workplace, even in non-work areas such as an employee lounge or the company cafeteria.

IV.   The Impact of Lechmere on Access Cases

One of the access issues remaining after Lechmere is whether its holding applies to employees as well as non-employees. In a series of NLRB decisions and the decisions of the NLRB's general counsel after Lechmere, the board has held that the underlying rationale and principles enunciated by the Supreme Court in Lechmere and Babcock & Wilcox apply to every union purpose and to striking employees as well as non-employee union organizers.

For example, in Leslie Homes, Inc., the NLRB considered for the first time how Lechmere affected an employer's right to exclude from its property non-employee union representatives engaged in area standards handbilling.42 Finding for the employer, the board ruled that Lechmere applied to area standards picketing and hand billing because the interests of non-employee union protesters should not have received more protection than derivative section 7 interests of non-employee union organizers. In Loehmann's Plaza, the NLRB applied Lechmere to a consumer boycott by non-employees.43 In Stepherson's Big Star, employees stood near the doors of a freestanding grocery store through which customers and employees entered and peacefully attempted to distribute handbills. The NLRB's general counsel, in an advisory opinion, concluded that this case was not the appropriate vehicle in which to advance the arguments that "despite the Supreme Court's Lechmere decision, a distinction should be drawn between the access rights of striking employees versus those of non-employees ... [and] that off duty or striking employees should have greater access rights than non-employees to appeal to the public."44 In Weingarten Realty Investors, the NLRB's general counsel ruled broadly that the rationale of Lechmere covered access to all private shopping center property by striking employees as well as non-employees.45 The union and the employees, the general counsel said, had reasonable alternative means of conveying their message from the public way at the perimeter of the shopping center 500 feet from the target AppleTree store and by radio advertisements. Thus, the employer and the property owner had the right to bar the strikers from the property completely.

Subsequently, the NLRB extended Lechmere to apply to non-employee union consumer boycott activities in Oakland Mall, Ltd., and Sears, Roebuck & Co.46 Although this case involved application of Lechmere to a secondary employer's right to bar non-employee union representatives from engaging in secondary consumer boycotting and hand billing on the employer's private property, its teaching concerning Jean Country and Scott Hudgens is instructive. The board acknowledged that in Jean Country it had stated, "Generally it will be the exceptional case where the use of newspapers, radio, and television will be feasible alternatives to direct contact."47 The board in Oakland Mall then stated,

In light of Lechmere, we find it necessary to reconsider the comment in Jean Country quoted above. Newspaper, radio, and television are certainly part of "the ordinary flow of information that characterizes our society." . . . [T]he General Counsel must show that the use of the mass media (such as newspapers, radio, and television) would not be a reasonable alternative means for the Union to communicate its message.48

The board in Oakland Mall concluded, "The General Counsel ha[d] failed to carry his heavy burden of proving 'unique obstacles' to the Union's attempt to communicate its consumer boycott message to Sears's customers."49

Further, in Galleria Joint Venture, the NLRB vacated its earlier decision and order after reconsideration in light of Lechmere.50 Although this case also involved non-employee access, the board characterized the Jean Country standard as the "now rejected" Jean Country standard.51 Citing its several month's old decision in Oakland Mall, the board held that picketing and hand billing on the public property sidewalk outside the shopping mall as well as mass-media communication were reasonable alternatives to trespassing.

On the other hand, the Supreme Court's failure to define in Lechmere what constitutes "disparate" or "discriminatory" application of an otherwise valid limitation has allowed the NLRB and some courts to require union-related access if an employer grants access to its property to various charitable organizations (e.g., Girl Scouts, Salvation Army, United Way, or Red Cross). This point is illustrated in Victory Markets, Inc.52

In Victory, non-employee union representatives engaged in hand billing on Victory's property to protest allegedly nonunion and substandard wages paid to employees by contractors remodeling one of Victory's stores. Concord, the manager of the mall in which the Victory store was located, asked the police to arrest the hand-billers for trespassing if they did not leave. Nonprofit and charitable organizations, however, had been given access to the property for fundraising and public awareness programs. The NLRB found, "Concord repeatedly permitted the use of its property for a wide range of charitable activity, and even some commercial activity, unrelated to the operation of the mall itself."53 Thus, the board held that barring union hand billing was discriminatory and unlawful.

The U.S. Courts of Appeals for the Fourth, Six, and Ninth Circuits have disagreed with the NLRB's premise that permitting charitable solicitation while excluding non-employee union activities requires a finding of discrimination. For instance, in Cleveland Real Estate Partners v. NLRB, the court defined discrimination very narrowly.54 In this case, the union began a do-not-patronize handbill campaign against Marc's, a retail store located in a strip mall managed by Cleveland. After its requests to leave went unheeded, Cleveland contacted the police to remove the hand-billers. The ensuing unfair labor practice proceeding resulted in the board's adoption of an administrative law judge's finding of discrimination.

The court, reversing the NLRB's decision, found that the strip mall manager had not engaged in an unfair labor practice by forbidding the union's informational handbilling of mall customers on mall premises, even though it allowed solicitation of mall customers by several charitable organizations. The court stated its belief that the board had misinterpreted Babcock & Wilcox:

To discriminate in the enforcement of a no-solicitation policy cannot mean that an employer commits an unfair labor practice if it allows the Girl Scouts to sell cookies, but is shielded from the effect of the Act if it prohibits them from doing so.... the term "discrimination" as used in Babcock means favoring one union over another, or allowing employer-related [anti-union] information while barring similar union-related information.55

The court held, "No relevant labor policies are advanced by requiring employers to prohibit charitable solicitations in order to preserve the right to exclude non-employee distribution of union literature when access to the target audience is otherwise available."56

In NLRB v. PayLess Drug Stores Northwest, Inc., non-employee union representatives picketed in front of the PayLess store to publicize its nonunion status and to urge the public not to patronize the store.57 PayLess, along with Wandermere (the owner of the strip shopping mall in which PayLess was located), had the pickets removed by the police. The NLRB found that the ejection of the union from the property constituted discrimination because of prior access that had been granted to certain other groups for use of the mall unrelated to the business of the mall.

The Ninth Circuit rejected the position that PayLess and Wandermere had engaged in disparate treatment of the union and denied enforcement of the board's order. It held, "A business should be free to allow local charitable and community organizations to use it's premises, whether for purely altruistic reasons or as a means of cultivating good will, without thereby being compelled to allow the use of those same premises by an organization that seeks to harm that business."58

Similarly, in Riesbeck Food Markets, Inc. v. NLRB, the Fourth Circuit upheld Riesbeck's prohibition of non-employee union pickets and hand-billers from distributing do-not-patronize literature on Riesbeck's property, even though Riesbeck "permitted all kinds of civic and charitable solicitation for a total of almost [two] months a year."59 The NLRB had found that Riesbeck's solicitation policy was "inherently discriminatory" against union solicitation, noting that the screening process for allowing group activities was problematic because it involved a practice by which Riesbeck reviewed and evaluated each message sought to be distributed.60

The Fourth Circuit refused to enforce the board's order. Discrimination claims require that an employer treat similar conduct differently. Here, the court found, there was a legally significant difference between charitable solicitations and a union's do-not-patronize solicitation.61 The court was not especially concerned with union animus; rather, it emphasized, "[A]n employer must have some degree of control over the messages it conveys to its customers on its private property."62 Furthermore, the court distinguished the union's message from the charitable solicitations by the fact that the former directly undermined Riesbeck's purposes (the sale of goods and services), while the latter encouraged business activity.

In sum, the NLRB and the courts currently disagree whether an employer may exclude non-employee union representatives from its property where it allows access by charitable and civic groups. The courts permit denial of access as long as the union has a reasonable alternative means of access to employees. While the NLRB is bound to follow court decisions within a circuit, it is free to ignore them in cases arising in other circuits that have not ruled on the issue.

V.   Conclusion

Over the years, the NLRB and courts have grappled with balancing section 7 rights of employees and private property rights of employers. Lechmere and its progeny teach that non-employee union representatives may be barred under trespassing laws from shopping centers, malls, and parking fields regardless of their purpose. Various other board and court cases have upheld the right of employers to adopt carefully worded rules to limit, but not entirely bar, union-related solicitation and distribution by employees during their working time and in working areas. Whether and to what extent property owners or stores may bar off-duty or striking employees from their private property is not entirely clear and requires careful attention. Changing factual patterns, new strategies, and turnover on the five-member NLRB have resulted in and may still continue to result in modifications of positions and unsettled law.


* Evan J. Spelfogel is a partner in the New York office of Epstein Becker & Green, P.C., and a fellow of the College of Labor and Employment Lawyers. Laurie Nicole Robinson was an associate in the New York office of Epstein Becker & Green, P.C., when this article was prepared and is now in an associate in the New York office of Seyfarth Shaw, where she specialized in labor and employment matters.

1 National Labor Relations Act § 7, 29 U.S.C. § 157 (1998).

2 351 U.S. 105 (1956).

3 National Labor Relations Act § 8(a)(1), 29 U.S.C. § 158(a)(1)(1998) (making it "an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed" them by section 7 to join unions or act in concert for mutual aid an protection).

4 Babcock, 351 U.S. at 112.

5 Id. at 112.

6 Id.

7 Id. at 113.

8 Id. at 112.

9 Id.

10 Babcock, 351 U.S. at 112.

11See Dexter Thread Mills, Inc., 199 N.L.R.B. 543, 81 L.R.R.M. (BNA) 1293 (1972) (involving a union attempt to organize retail store employees. The employer's property was accessible only by means of a public highway adjacent to the parking lot, with a speed limit of 60 m.p.h. A ten-foot wide, tree-filled public easement separated company property from this highway. The union challenged the employer's refusal to permit organizers to distribute handbills on the company parking lot and argued that efforts to obtain employee names and addresses and to make home visits had been unsuccessful. The NLRB upheld the employer's right to exclude the organizers because it would have been relatively easy and safe for the union organizers to stand on the public easement between the lot and the highway and copy the license numbers of cars entering the lot. Hence, union organizers could easily obtain the names and addresses of employees and communicate with them at their homes).

12 Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968), abrogated by Hudgens v. NLRB, 424 U.S. 507 (1976).

13 Logan Valley Plaza, Inc. v. Amalgamated Food Employees Local 590, 227 A.2d 874 (Pa. 1967).

14 391 U.S. 308.

15 326 U.S. 501, 508 (1946).

16 Logan Valley Plaza, Inc., 391 U.S. at 319-20.

17 407 U.S. 551 (1972).

18 424 U.S. 507.

19 Giant Food Mkts, Inc., 241 N.L.R.B. 727, 100 L.R.R.M. (BNA) 1598 (1979), vacated, 633 F.2d 18 (6th Cir. 1980).

20 241 N.L.R.B. at 729. An interesting sidelight of the Giant Food decision was that the state court initially granted, then vacated, and then reinstated its injunction. After the NLRB decision in favor of the union, the state court injunction was again vacated on preemption grounds.

21633 F.2d 18 (6th Cir. 1980)

22 241 N.L.R.B. 11, 129 L.R.R.M. (BNA) 1201 (1988), abrogated by Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992). The test announced in Jean Country replaced the NLRB's earlier test in Fairmount Hotel Co., for non-employee union access. 282 N.L.R.B. 139, 123 L.R.R.M. (BNA) 1257 (1986), overruled in part by Jean Country, 291 N.L.R.B. 11.

23 See Babcock & Wilcox, 351 U.S. 105; Hudgens, 424 U.S. 507.

24Jean Country, 291 N.L.R.B. at 14.

25 See id. at 18.

26 Id. at 20.

27 Id. at 18.

28 Id. at 19.

29 502 U.S. 527 (1992).

30 914 F.2d 313 (1st Cir. 1990)

31 Lechmere, Inc., 502 U.S. at 541.

32 Id. at 537 (quoting Babcock & Wilcox, 351 U.S. at 112.)

33 Id. at 538. Justice White, in dissent, argued that the NLRB correctly made and "accommodation" of the competing section 7 interest under the Babcock & Wilcox and Hudgens rulings. Moreover, the dissent argued that there are cases in which access to private property must be granted under section 7 and that this access should not be limited solely to instances when reasonable alternative access is infeasible. Rather, Justice White asserted that under previous cases, the Court viewed reasonable alternative means as "an important factor in finding the least destructive accommodation between § 7 and property rights." Id. at 545. Finally, Justice White argued that the Court failed to give proper deference to the board's interpretation of section 7.

34 Id. at 539.

35 243 N.L.R.B. 898, 101 L.R.R.M. (BNA) 1537 (1979).

36 324 U.S. 793 (1945).

37 Id. at 795.

38 268 N.L.R.B. 394, 115 L.R.R.M. (BNA) 1009 (1983).

39 See Famous-Barr Co., 59 N.L.R.B. 976, 15 L.R.R.M. (BNA) 173 (1944), enf'd sub nom. NLRB v. May Dep't Stores Co., 154 F.2d 533 (8th Cir. 1946); May Dep't Stores Co., 136 N.L.R.B. 797, 49 L.R.R.M. (BNA) 1862 (1962), set aside by May Dep't Stores Co. v. NLRB, 316 F.2d 797 (6th Cir. 1963).

40 Tri-County Medical Center, Inc. 222 N.L.R.B. 1089, 91 L.R.R.M. (BNA) 1323 (1976).

41 Id. at 1089 (emphasis added); see also NLRB v. Pizza Crust Co. of Pa., Inc. 862 F.2d 49 (3d Cir. 1988) (employer's rule against off-duty employee distribution of union literature in plant parking lot is an unfair labor practice).

42 316 N.L.R.B. 123, 148 L.R.R.M. (BNA) 1105 (1995).

43 316 N.L.R.B. 109, 148 L.R.R.M. (BNA) 1116 (1995).

44 Case 26-CA-14841, 1992 WL 83509, at *1-2 (N.L.R.B.G.C. Feb. 28, 1992). Although the picketing employees were removed from the storefronts, they were allowed to remain in the adjacent private parking fields by agreement with the employer and the property owner.

45 Case 16-CA-15665, 1993 WL 142608, at *1 (N.L.R.B.G.C. Mar. 31 1993).

46 316 N.L.R.B. 1160, 149 L.R.R.M. (BNA) 1017 (1995), review denied, 74 F.3d 292 (D.C. Cir. 1996).

47 Jean Country, 291 N.L.R.B. at 13.

48 316 N.L.R.B. at 1163.

49 Id. at 1164.

50 317 N.L.R.B. 1147, 149 L.R.R.M. (BNA) 1320 (1995).

51 317 N.L.R.B. at 1149.

52 322 N.L.R.B. 17, 153 L.R.R.M. (BNA) 1177 (1996).

53 Id. at 24.

54 95 F.3d 457 (6th Cir. 1996), disagreed with by Meijer, Inc. v. NLRB, 130 F.3d 1209 (6th Cir. 1997).

55 Id. at 465 (citation omitted).

56 Id.

57 57 F.3d 1077, 1995 U.S. App. LEXIS 13443, at *3 (9th Cir. May 25, 1995).

58 Id. (citation omitted).

59 91 F.3d 132, 1996 U.S. App. LEXIS 17693, at *4 (4th Cir. July 19, 1996).

60 Id. at *5.

61 Id. at *2.

62 Id. at *13.

Please feel free to contact Evan J. Spelfogel at 212/351-4500 in the firm's New York office if you have any questions or comments. Mr. Spelfogel's e-mail address is [email protected] .

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