Lechmere Inc. v. National Labor Relations Board/Dissent White

by Byron White

Justice WHITE, with whom Justice BLACKMUN joins, dissenting.

"We will uphold a Board rule so long as it is rational and consistent with the Act, . . . even if we would have formulated a different rule had we sat on the Board." NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 787, 110 S.Ct. 1542, ----, 108 L.Ed.2d 801 (1990). The judicial role is narrow: The Board's application of the rule, if supported by substantial evidence on the record as a whole, must be enforced. Beth Israel Hospital v. NLRB, 437 U.S. 483, 501, 98 S.Ct. 2463, 2473, 57 L.Ed.2d 370 (1978).

In NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112, 76 S.Ct. 679, 684, 100 L.Ed. 975 (1956), the Court said that where nonemployee union representatives seek access to the employer's parking lot for the purpose of communicating with employees, the employer's property rights and the organizational rights of employees must be "[a]ccommodat[ed] . . . with as little destruction of one as is consistent with the maintenance of the other." Although it said that it was slow to overturn an administrative decision, the Court disagreed with the balance the Board had struck in granting access to the union because the Board had failed to recognize that access by nonemployees required a different accommodation than where employees are involved. Id., at 112-113, 76 S.Ct., at 684-685. The Court went on to say that "when the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels, the right to exclude from property has been required to yield to the extent needed to permit communication of information on the right to organize." Ibid. Later the Court said: "The right of self-organization depends in some measure on the ability of employees to learn the advantages of self-organization from others. Consequently, if the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them, the employer must allow the union to approach his employees on his property." Id., at 113, 76 S.Ct., at 684. The Court went on to hold that no such conditions were shown in the records of the cases before it.

In the case before us, the Court holds that Babcock itself stated the correct accommodation between property and organizational rights; it interprets that case as construing §§ 7 and 8(a)(1) of the National Labor Relations Act to contain a general rule forbidding third-party access, subject only to a limited exception where the union demonstrates that the location of the employer's place of business and the living quarters of the employees place the employees beyond the reach of reasonable efforts to communicate with them. The Court refuses to enforce the Board's order in this case, which rested on its prior decision in Jean Country, 291 N.L.R.B. 11 (1988), because, in the Court's view, Jean Country revealed that the Board misunderstood the basic holding in Babcock, as well as the narrowness of the exception to the general rule announced in that case.

For several reasons, the Court errs in this case. First, that Babcock stated that inaccessibility would be a reason to grant access does not indicate that there would be no other circumstance that would warrant entry to the employer's parking lot and would satisfy the Court's admonition that accommodation must be made with as little destruction of property rights as is consistent with the right of employees to learn the advantages of self-organization from others. Of course the union must show that its "reasonable efforts", without access, will not permit proper communication with employees. But I cannot believe that the Court in Babcock intended to confine the reach of such general considerations to the single circumstance that the Court now seizes upon. If the Court in Babcock indicated that nonemployee access to a logging camp would be required, it did not say that only in such situations could nonemployee access be permitted. Nor did Babcock require the Board to ignore the substantial difference between the entirely private parking lot of a secluded manufacturing plant and a shopping center lot which is open to the public without substantial limitation. Nor indeed did Babcock indicate that the Board could not consider the fact that employees' residences are scattered throughout a major metropolitan area; Babcock itself relied on the fact that the employees in that case lived in a compact area which made them easily accessible.

Moreover, the Court in Babcock recognized that actual communication with nonemployee organizers, not mere notice that an organizing campaign exists, is necessary to vindicate § 7 rights. 351 U.S., at 113, 76 S.Ct., at 684. If employees are entitled to learn from others the advantages of self-organization, ibid., it is singularly unpersuasive to suggest that the union has sufficient access for this purpose by being able to hold up signs from a public grassy strip adjacent to the highway leading to the parking lot.

Second, the Court's reading of Babcock is not the reading of that case reflected in later opinions of the Court. We have consistently declined to define the principle of Babcock as a general rule subject to narrow exceptions, and have instead repeatedly reaffirmed that the standard is a neutral and flexible rule of accommodation. In Central Hardware Co. v. NLRB, 407 U.S. 539, 544, 92 S.Ct. 2238, 2241, 33 L.Ed.2d 122 (1972), we explicitly stated that the "guiding principle" for adjusting conflicts between § 7 rights and property rights enunciated in Babcock is that contained in its neutral "accommodation" language. Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976), gave this Court the occasion to provide direct guidance to the NLRB on this issue. In that case, we emphasized Babcock's necessity-to-accommodate admonition, pointed out the differences between Babcock and Hudgens, and left the balance to be struck by the Board. "The locus of that accommodation . . . may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context. In each generic situation, the primary responsibility for making this accommodation must rest with the Board in the first instance." 424 U.S., at 522, 96 S.Ct., at 1038. Hudgens did not purport to modify Babcock and surely indicates that Babcock announced a more flexible rule than the narrow, iron-clad rule that the Court now extracts from that case. If Babcock means what the Court says it means, there is no doubt tension between that case and Hudgens. If that is so, Hudgens as the later pronouncement on the question, issued as a directive to the Board, should be controlling. ^[1]

The majority today asserts that "[i]t is only where [reasonable alternative] access is infeasible that it becomes necessary and proper to take the accommodation inquiry to a second level, balancing the employees' and employers' rights." Ante, at 538. Our cases, however, are more consistent with the Jean Country view that reasonable alternatives are an important factor in finding the least destructive accommodation between § 7 and property rights. The majority's assertion to this effect notwithstanding, our cases do not require a prior showing regarding reasonable alternatives as a precondition to any inquiry balancing the two rights. The majority can hardly fault the Board for a decision which "conflates . . . two stages of the inquiry," ante, at 538, when no two-stage inquiry has been set forth by this Court.

Third, and more fundamentally, Babcock is at odds with modern concepts of deference to an administrative agency charged with administering a statute. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). When reviewing an agency's construction of a statute, we ask first whether Congress has spoken to the precise question at issue. Chevron, supra, at 842, 104 S.Ct., at 2781. If it has not, we do not simply impose our own construction on the statute; rather, we determine if the agency's view is based on a permissible construction of the statute. 467 U.S., at 843, 104 S.Ct., at 2781. Babcock did not ask if Congress had specifically spoken to the issue of access by third parties and did not purport to explain how the NLRA specifically dealt with what the access rule should be where third parties are concerned. If it had made such an inquiry, the only basis for finding statutory language that settled the issue would have been the language of § 7, which speaks only of the rights of employees; i.e., the Court might have found that § 7 extends no access rights at all to union representatives. But Babcock itself recognized that employees have a right to learn from others about self-organization, 351 U.S., at 113, 76 S.Ct., at 685, and itself recognized that in some circumstances, §§ 7 and 8 required the employer to grant the union access to parking lots. So have later Courts and so does the Court today.

That being the case, the Babcock Court should have recognized that the Board's construction of the statute was a permissible one and deferred to its judgment. Instead, the Court simply announced that as far as access is concerned, third parties must be treated less favorably than employees. Furthermore, after issuing a construction of the statute different from that of the Board, rather than remanding to the Board to determine how third parties should be dealt with, the Babcock Court essentially took over the agency's job, not only by detailing how union organizer access should be determined but also by announcing that the records before it did not contain facts that would satisfy the newly coined access rule.

Had a case like Babcock been first presented for decision under the law governing in 1991, I am quite sure that we would have deferred to the Board, or at least attempted to find sounder ground for not doing so. Furthermore, had the Board ruled that third parties must be treated differently than employees and held them to the standard that the Court now says Babcock mandated, it is clear enough that we also would have accepted that construction of the statute. But it is also clear, at least to me, that if the Board later reworked that rule in the manner of Jean Country, we would also accept the Board's change of mind. See NLRB v. Curtin Matheson Scientific, Inc., 494 U.S., at ----, 110 S.Ct., at ----; NLRB v. J. Weingarten, Inc., 420 U.S. 251, 265-266, 95 S.Ct. 959, 967-968, 43 L.Ed.2d 171 (1975).

As it is, the Court's decision fails to recognize that Babcock is at odds with the current law of deference to administrative agencies and compounds that error by adopting the substantive approach Babcock applied lock, stock, and barrel. And unnecessarily so, for, as indicated above, Babcock certainly does not require the reading the Court gives it today, and in any event later cases have put a gloss on Babcock that the Court should recognize.

Finally, the majority commits a concluding error in its application of the outdated standard of Babcock to review the Board's conclusion that there were no reasonable alternative means available to the union. Unless the Court today proposes to turn back time in the law of judicial deference to administrative agencies, the proper standard for judicial review of the Board's rulings is no longer for " 'erroneous legal foundations,' " ante at ----, but for rationality and consistency with the statute. Litton Financial Printing Div. v. NLRB, 501 U.S. ----, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991); NLRB v. Curtin Matheson Scientific, Inc., supra; Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 42, 107 S.Ct. 2225, 2235, 96 L.Ed.2d 22 (1987); NLRB v. Financial Institution Employees, 475 U.S. 192, 202, 106 S.Ct. 1007, 1012, 89 L.Ed.2d 151 (1986); Beth Israel Hospital, 437 U.S., at 501, 98 S.Ct., at 2473. "The judicial role is narrow: . . . the Board's application of the rule, if supported by substantial evidence on the record as a whole, must be enforced." Ibid. The Board's conclusion as to reasonable alternatives in this case was supported by evidence in the record. Even if the majority cannot defer to that application, because of the depth of its objections to the rule applied by the NLRB, it should remand to the Board for a decision under the rule it arrives at today, rather than sitting in the place Congress has assigned to the Board.

The more basic legal error of the majority today, like that of the Court of Appeals in Chevron, is to adopt a static judicial construction of the statute when Congress has not commanded that construction. Cf. Chevron, supra, 467 U.S., at 842, 104 S.Ct., at 2781. By leaving open the question of how § 7 and private property rights were to be accommodated under the NLRA, Congress delegated authority over that issue to the Board, and a court should not substitute its own judgment for a reasonable construction by the Board. Cf. id., at 844, 104 S.Ct., at 2781.

Under the law that governs today, it is Babcock that rests on questionable legal foundations. The Board's decision in Jean Country, by contrast, is both rational and consistent with the governing statute. The Court should therefore defer to the Board, rather than resurrecting and extending the reach of a decision which embodies principles which the law has long since passed by.

It is evident, therefore, that, in my view, the Court should defer to the Board's decision in Jean Country and its application of Jean Country in this case. With all due respect, I dissent.

Notes

1. In Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978), we once again reaffirmed the accommodation language, as refined by Hudgens. The language we quoted in text in Sears was that of Hudgens, not Babcock. Thus, notwithstanding the majority's assertion that Sears laid to rest any question whether Hudgens changed § 7 law, ante, at 534-535, Sears in fact endorsed the Hudgens refinement of the § 7 property rights accommodation analysis, recognizing that the accommodation may fall at differing points, and that the Board should evaluate the nature and strength of property and § 7 rights.

Sears was a pre-emption case, and only peripherally involved substantive principles of § 7 accommodation by the NLRB. Unlike Hudgens, in Sears we did not remand for ultimate disposition by the Board, but rather remanded to the state court. Thus, we had no occasion in that case, as we did in Hudgens, to provide further guidance to the Board in its interpretation of the NLRA (and of Babcock, Hudgens, and other decisions). Our "general rule" language recounting the rarity of NLRB decisions allowing access should be taken for what it was, a descriptive recounting of what "experience . . . teaches", Sears, supra, 436 U.S., at 205, 98 S.Ct., at 1761, about the way that the NLRB had exercised its authority, and not any prescription from this Court as to the analysis the Board should apply. That analysis had already been cited. 436 U.S., at 204, 98 S.Ct., at 1760. Contrary to what the majority suggests, Sears did not clear up any false ambiguity created by Hudgens; to the extent that it addressed the relevant issues, it reaffirmed the refined and more detailed guidance offered by Hudgens.