Petitioner had a rule against solicitational activities in its
stores and parking lots. The parking lots are appurtenant to
petitioner's free-standing stores, and do not serve other retail
establishments. Union organizers used petitioner's parking lots to
solicit petitioner's employees to join the union, and petitioner
ordered the organizers off its property. The union filed unfair
labor practice charges against petitioner. The National Labor
Relations Board (NLRB) held that enforcement of petitioner's
no-solicitation rule, which it found was overly broad, violated §
8(a)(1) of the National Labor Relations Act, which proscribes
interference with employees' § 7 organizational rights. The NLRB
concluded that the character and use of the lots distinguished the
case from
NLRB v. Babcock & Wilcox Co., 351 U.
S. 105, which required a "yielding" of the employer's
property rights in the context of an organizational campaign
only
"when the inaccessibility of employees makes ineffective the
reasonable attempts by nonemployees to communicate with them
through the usual channels. . . ."
Id. at
351 U. S. 112.
Instead, the NLRB held applicable
Food Employee v. Logan Valley
Plaza, 391 U. S. 308,
where peaceful picketing by union agents on a parking lot within a
shopping center was held, under the circumstances existing, to be
within the protection of the First Amendment. The Court of Appeals,
agreeing, ordered enforcement of the NLRB's order.
Held: Logan Valley, decided on constitutional grounds,
is not applicable to this § 7 case, which the Court of Appeals
should now reconsider in the light of
Babcock. Pp.
407 U. S.
542-548.
439 F.2d 1321, vacated and remanded.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and STEWART, WHITE, BLACKMUN, and REHNQUIST, JJ., joined.
MARSHALL, J., filed a dissenting opinion, in which DOUGLAS and
BRENNAN, JJ., joined,
post, p.
407 U. S.
548.
Page 407 U. S. 540
MR. JUSTICE POWELL delivered the opinion of the Court.
Petitioner, Central Hardware Co. (Central), owns and operates
two retail hardware stores in Indianapolis, Indiana. Each store is
housed in a large building, containing 70,000 square feet of floor
space, and housing no other retail establishments. The stores are
surrounded on three sides by ample parking facilities,
accommodating approximately 350 automobiles. The parking lots are
owned by Central, and are maintained solely for the use of
Central's customers and employees. While there are other retail
establishments in the vicinity of Central's stores, these
establishments are not a part of a shopping center complex, and
they maintain their own separate parking lots.
Approximately a week before Central opened its stores, the
Retail Clerks Union, Local 725, Retail Clerks International
Association, AFL-CIO (the Union), began an organization campaign at
both stores. The campaign consisted primarily of solicitation by
nonemployee Union
Page 407 U. S. 541
organizers on Central's parking lots. The nonemployee organizers
confronted Central's employees in the parking lots and sought to
persuade them to sign cards authorizing the Union to represent them
in an appropriate bargaining unit. As a part of the organization
campaign, an "undercover agent for the Union" was infiltrated into
the employ of Central, receiving full-time salary from both the
Union and the company. This agent solicited employees to join the
Union, and obtained a list of the employees of the two stores which
was about 80% complete.
Central had a no-solicitation rule which it enforced against all
solicitational activities in its stores and on its parking lots. A
number of employees complained to Central's local management that
they were being harassed by the organizers, and these complaints
were forwarded to Central's corporate headquarters in St. Louis,
Missouri. The St. Louis officials directed the Indianapolis
management to enforce the nonemployee no-solicitation rule and keep
all Union organizers off the company premises, including the
parking lots. Although most of the nonemployee Union organizers had
either left Indianapolis or ceased work on the Central organization
campaign, the Indianapolis management had occasion to assert the
nonemployee no-solicitation rule on several occasions.
One arrest was made when a field organizer for the Union was
confronted by the manager of one of the stores on its parking lot,
and refused to leave after being requested to do so. The field
organizer asserted that he was a "customer," and insisted upon
entering the store. The police were called, and when the organizer
persisted in his refusal to leave, he was arrested.
Shortly after Central received complaints from its employees as
to harassment by the organizers, Central filed unfair labor
practice charges against the Union.
Page 407 U. S. 542
The Union subsequently filed unfair labor practice charges
against Central. After an investigation, the General Counsel of the
National Labor Relations Board (the Board) dismissed Central's
charges against the Union, and issued a complaint against Central
on the Union's charges.
The Board held that Central's nonemployee no-solicitation rule
was overly broad, and that its enforcement violated § 8(a)(1) of
the National Labor Relations Act. The Board reasoned that the
character and use of Central's parking lots distinguished the case
from
NLRB v. Babcock & Wilcox Co., 351 U.
S. 105 (1956), and brought it within the principle of
Amalgamated Food Employees Union v. Logan Valley Plaza,
391 U. S. 308
(1968). 181 N.L.R.B. 491 (1970). A divided Court of Appeals for the
Eighth Circuit agreed, and ordered enforcement of the Board's order
enjoining Central from enforcing any rule prohibiting nonemployee
Union organizers from using its parking lots to solicit employees
on behalf of the Union. 439 F.2d 1321 (1971). We granted certiorari
to consider whether the principle of
Logan Valley is
applicable to this case. 404 U.S. 1014 (1972). We conclude that it
is not.
I
Section 7 of the National Labor Relations Act, as amended, 61
Stat. 140, 29 U.S.C. § 157, guarantees to employees the right "to
self-organization, to form, join, or assist labor organizations."
This guarantee includes both the right of union officials to
discuss organization with employees and the right of employees to
discuss organization among themselves. [
Footnote 1] Section 8(a)(1) of the Act, as amended, 29
U.S.C. § 158(a)(1), makes it an unfair labor practice for an
employer "to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed"
Page 407 U. S. 543
in § 7. But organization rights are not viable in a vacuum;
their effectiveness depends in some measure on the ability of
employees to learn the advantages and disadvantages of organization
from others. Early in the history of the administration of the Act,
the Board recognized the importance of freedom of communication to
the free exercise of organization rights.
See Peyton Packing
Co., 49 N.L.R.B. 28 (1943),
enforced, 142 F.2d 1009
(CA5),
cert. denied, 323 U.S. 730 (1944).
In seeking to provide information essential to the free exercise
of organization rights, union organizers have often engaged in
conduct inconsistent with traditional notions of private property
rights. The Board and the courts have the duty to resolve conflicts
between organization rights and property rights, and to seek a
proper accommodation between the two. This Court addressed the
conflict which often arises between organization rights and
property rights in
NLRB v. Babcock & Wilcox Co.,
351 U. S. 105
(1956). The Babcock & Wilcox Co. operated a manufacturing plant
on a 100-acre tract about one mile from a community of 21,000
people. The plant buildings were enclosed within a fence, employee
access being through several gates. Approximately 90% of the
employees drove to work in private cars, and the company maintained
a parking lot for the employees. Only employees and deliverymen
normally used the parking lot. The company had a rule forbidding
the distribution of literature on company property. The Board found
that the company's parking lot and the walkway leading from it to
the plant entrance were the only "safe and practicable" places in
the vicinity of the plant for distribution of union literature, and
held the company guilty of an unfair labor practice for enforcing
the no-distribution rule, and thereby denying union organizers
limited access to company property. The Board ordered the
company
Page 407 U. S. 544
to rescind its no-distribution rule insofar as it related to
nonemployee union representatives seeking to distribute union
literature on the parking lot and walkway area. [
Footnote 2]
The Court of Appeals for the Fifth Circuit refused enforcement
of the Board's order on the ground that the Act did not authorize
the Board to impose a servitude on an employer's property where no
employee was involved. [
Footnote
3] This Court affirmed on the ground that the availability of
alternative channels of communication made the intrusion on the
employer's property rights ordered by the Board unwarranted. The
Court in
Babcock stated the guiding principle for
adjusting conflicts between § 7 rights and property rights:
"Organization rights are granted to workers by the same
authority, the National Government, that preserves property rights.
Accommodation between the two must be obtained with as little
destruction of one as is consistent with the maintenance of the
other. The employer may not affirmatively interfere with
organization; the union may not always insist that the employer aid
organization. But 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."
351 U.S. at
351 U. S.
112.
The principle of
Babcock is limited to this
accommodation between organization rights and property rights. This
principle requires a "yielding" of property rights only in the
context of an organization campaign.
Page 407 U. S. 545
Moreover, the allowed intrusion on property rights is limited to
that necessary to facilitate the exercise of employees' § 7 rights.
After the requisite need for access to the employer's property has
been shown, the access is limited to (i) union organizers; (ii)
prescribed nonworking areas of the employer's premises; and (iii)
the duration of organization activity. In short, the principle of
accommodation announced in
Babcock is limited to labor
organization campaigns, and the "yielding" of property rights it
may require is both temporary and minimal.
II
The principle applied in
Amalgamated Food Employees Union v.
Logan Valley Plaza, 391 U. S. 308
(198), is quite different. While it is true that
Logan
Valley involved labor picketing, the decision rests on
constitutional grounds; it is not a § 7 case.
Logan Valley had its genesis in
Marsh v.
Alabama, 326 U. S. 501
(1946).
Marsh involved a "company town," an economic
anachronism rarely encountered today. The town was wholly owned by
the Gulf Shipbuilding Corp., yet it had all of the characteristics
of any other American town. Gulf Shipbuilding held title to all the
land in the town, including that covered by streets and sidewalks.
Gulf Shipbuilding also provided municipal services, such as
sewerage service and police protection, to the residents of the
town. A Jehovah's Witness undertook to distribute religious
literature on a sidewalk near the post office in the "business
block" of the town, and was arrested on a trespassing charge. She
was subsequently convicted of the crime of trespassing, and the
Alabama courts upheld the conviction on appeal. This Court
reversed, holding that Alabama could not permit a corporation to
assume the functions of a municipal government and at the same
Page 407 U. S. 546
time deny First Amendment rights through the application of the
State's criminal trespass law.
In
Logan Valley, over a strong dissent by Mr. Justice
Black, the author of
Marsh, the Court applied the
reasoning of
Marsh to a modern economic phenomenon, the
shopping center complex. The Logan Valley Mall was a complex of
retail establishments, which the Court regarded under the factual
circumstances as the functional equivalent of the "community
business block" of the company town in
Marsh. The
corporate owner of Logan Valley Mall obtained a state court
injunction against peaceful picketing on the shopping center
property, and the Pennsylvania Supreme Court affirmed the issuance
of the injunction on the ground that the picketing constituted a
trespass on private property. This Court reversed, holding that
Pennsylvania could not
"delegate the power, through the use of its trespass laws,
wholly to exclude those members of the public wishing to exercise
their First Amendment rights on the premises in a manner and for a
purpose generally consonant with the use to which the property is
actually put."
391 U.S. at
391 U. S.
319-320.
III
The Board and the Court of Appeals held that
Logan
Valley, rather than
Babcock, controlled this case.
The Board asserts that the distinguishing feature between these two
cases is that, in
Logan Valley, the owner had "diluted his
property interest by opening his property to the general public for
his own economic advantage." [
Footnote 4]
The emphasis, both in the argument on behalf of the Board and in
the opinion below, is on the opening of the property "to the
general public." [
Footnote
5]
Page 407 U. S. 547
This analysis misconceives the rationale of
Logan
Valley. [
Footnote 6]
Logan Valley involved a large commercial shopping center
which the Court found had displaced, in certain relevant respects,
the functions of the norial municipal "business block." First and
Fourteenth Amendment free speech rights were deemed infringed under
the facts of that case when the property owner invoked the trespass
laws of the State against the pickets.
Before an owner of private property can be subjected to the
commands of the First and Fourteenth Amendments, the privately
owned property must assume to some significant degree the
functional attributes of public property devoted to public use. The
First and Fourteenth Amendments are limitations on state action,
not on action by the owner of private property used only for
private purposes. The only fact relied upon for the argument that
Central's parking lots have acquired the characteristics of a
public municipal facility is that they are "open to the public."
Such an argument could be made with respect to almost every retail
and service establishment in the country, regardless of size or
location. To accept it would cut Logan Valley entirely away from
its roots in
Marsh. It would also constitute an
unwarranted infringement of long-settled rights of private property
protected by the Fifth and Fourteenth Amendments. We hold that the
Board and the Court of Appeals erred in applying
Logan
Valley to this case.
The Trial Examiner concluded that no reasonable means of
communication with employees were available to the nonemployee
Union organizers other than solicitation in Central's parking lots.
The Board adopted this conclusion. Central vigorously contends that
this
Page 407 U. S. 548
conclusion is not supported by substantial evidence in the
record as a whole. The Court of Appeals did not consider this
contention, because it viewed
Logan Valley as controlling,
rather than
Babcock. The determination whether, on the
record as a whole, there is substantial evidence to support agency
findings is a matter entrusted primarily to the courts of appeals.
Universal Camera Corp. v. NLRB, 340 U.
S. 474 (1951). Since the Court of Appeals has not yet
considered this question in light of the principles of
NLRB v.
Babcock & Wilcox Co., supra, the judgment is vacated, and
the case will be remanded to that court for such consideration.
It is so ordered.
[
Footnote 1]
See Thomas v. Collins, 323 U.
S. 516,
323 U. S.
533-534 (1945).
[
Footnote 2]
Babcock & Wilcox Co., 109 N.L.R.B. 485, 486
(1954).
[
Footnote 3]
NLRB v. Babcock & Wilcox Co., 222 F.2d 316 (CA5
1955).
[
Footnote 4]
Brief for the NLRB 20.
[
Footnote 5]
439 F.2d at 1326-1328.
[
Footnote 6]
For a full discussion of
Logan Valley and the
circumstances in which it is applicable,
see the decision
of the Court today in
Lloyd Corp. v. Tanner, post, p.
407 U. S. 551.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE DOUGLAS and MR.
JUSTICE BRENNAN join, dissenting.
I agree with the Court that this case should have been
considered under
NLRB v. Babcock & Wilcox Co.,
351 U. S. 105
(1956). That case is, as the opinion of the Court suggests,
narrower than
Amalgamated Food Employees Union v. Logan Valley
Plaza, 391 U. S. 308
(1968). It does not purport to interpret the National Labor
Relations Act (NLRA) so as to give union members the same
comprehensive rights to free expression on the private property of
an employer that the First Amendment gives to all citizens on
private property that is the functional equivalent of a public
business district. But
Babcock is, in another sense, even
broader than
Logan Valley. It holds that, where a union
has no other means at its disposal to communicate with employees
other than to use the employer's property, or where the union is
denied the access to employees that the employer gives anti-union
forces, the union may communicate with employees on the property of
the employer. Congress gave unions this right in Section 7
Page 407 U. S. 549
of the NLRA, 61 Stat. 140, 29 U.S.C. § 157. The First Amendment
gives no such broad right to use private property to ordinary
citizens.
The National Labor Relations Board found that petitioner
permitted anti-union solicitation on its premises at the same time
that it barred union solictation. 181 N.L.R.B. 491 (1970). It made
no explicit finding as to whether access to the employees was
reasonably available to the union outside of the petitioner's
property, but suggested that it was not. Rather than deciding the
case under
Babcock, supra, which would appear to control
and to provide that the union activity in the case is protected by
the NLRA, the Board appears to have decided the case under
Logan Valley, supra. The United States Court of Appeals
for the Eighth Circuit affirmed on the basis of
Logan
Valley, and found it unnecessary to review the Board's finding
of discrimination by the employer against the union in the use of
its property, or to remand the case for a determination of whether
it was necessary for the union to use petitioner's property to
communicate with the employees. 439 F.2d 1321 (1971).
It is obvious, then, that neither the Board nor the Court of
Appeals has fully considered whether the employer's conduct was
proscribed by
Babcock, even though the indications in the
Board's opinion are that it was. In reaching out to decide this
case under
Logan Valley, the agency and the lower court
decided a difficult constitutional issue that might well have been
avoided by deciding the case under the NLRA. This was error. The
principle is well established that decisions on constitutional
questions should not be reached unnecessarily.
See, e.g.,
Dandridge v. Williams, 397 U. S. 471,
397 U. S. 476
(1970);
Rosenberg v. Fleuti, 374 U.
S. 449 (1963).
Page 407 U. S. 550
Since both the agency and the Court of Appeals should have first
decided whether or not
Babcock controlled the instant case
before proceeding to decide it under
Logan Valley, before
this Court decides whether or not the decision below was correct
under the Constitution, we should remand the case to the Board,
rather than to the Court of Appeals, for a square holding as to the
applicability of
Babcock to the facts of this case. MR.
JUSTICE WHITE has recently reemphasized the point that, when an
agency decides a case under an incorrect legal approach, courts
should not seek to predict whether the agency would have decided
the case the same way under the correct approach, but should
instead remand the case to the agency for further proceedings.
FTC v. Sperry & Hutchinson Co., 405 U.
S. 233,
405 U. S. 249
(1972).
See also Burlington Truck Lines v. United States,
371 U. S. 156,
371 U. S. 168
(1962).
Accordingly, I would remand this case to the Board for further
proceedings without deciding the constitutional question.