1. State the Babcock rule as set forth in the majority opinion. Is the exception to the...

Question:

1. State the Babcock rule as set forth in the majority opinion. Is the exception to the rule a broad one?
2. Did the nonemployee union organizers have reasonable access to Lechmere employees outside the employer’s property?
3. Did the dissent agree that there was sufficient access given the union organizers, as they were able to hold up signs from a grassy strip adjacent to the highway?


[Petitioner Lechmere, Inc., owns and operates a retail store located in a shopping plaza in Newington, a suburb of Hartford, Connecticut. Lechmere is also part owner of the plaza's parking lot, which is separated from a public highway by a 46-foot-wide grassy strip, almost all of which is public property. In a campaign to organize Lechmere employees, nonemployee union organizers from Local 919 of the UFCW union placed handbills on the windshields of cars parked in the employees' part of the parking lot. After Lechmere denied the organizers access to the lot, they picketed from the grassy strip. In addition, they were able to contact directly some 20 percent of the employees. The union filed an unfair labor practice charge with the Board, alleging that Lechmere had violated the NLRA by barring the organizers from its property. An administrative law judge ruled in the union's favor. The Board affirmed, and the court of appeals enforced the Board's order.]
THOMAS, J.…
A.
Section 7 of the NLRA provides in relevant part that "[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations." 29 U.S.C. § 157. Section 8(a)(1) of the Act, in turn, makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of rights guaranteed in [§ 7]." 29 U.S.C. § 158(a)(1). By its plain terms, thus, the NLRA confers rights only on employees, not on unions or their nonemployee organizers. In NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), however, we recognized that insofar as the employees' "right of self-organization depends in some measure on [their] ability… to learn the advantages of self-organization from others," id., at 113, § 7 of the NLRA may, in certain limited circumstances, restrict an employer's right to exclude nonemployee union organizers from his property. It is the nature of those circumstances that we explore today….

[In Babcock, the Board ordered the company to allow the nonemployee organizers to distribute literature on its parking lot and walkways; the court of appeals refused to enforce the order; and the Supreme Court decided to hear the case.] While recognizing that "the Board has the responsibility of 'applying the Act's general prohibitory language in the light of the infinite combinations of events which might be charged as violative of its terms,'" 351 U.S., at 111-112 (quoting NLRB v. Stowe Spinning Co., 336 U.S. 226, 231 (1949)), we [the Supreme Court] explained that the Board had erred by failing to make the critical distinction between the organizing activities of employees (to whom § 7 guarantees the right of self-organization) and nonemployees (to whom § 7 applies only derivatively). Thus, while "[n]o restriction may be placed on the employees' right to discuss self-organization among themselves, unless the employer can demonstrate that a restriction is necessary to maintain production or discipline," 351 U.S., at 113 (emphasis added) (citing Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 (1945)), "no such obligation is owed non-employee organizers," 351 U.S., at 113. As a rule, then, an employer cannot be compelled to allow distribution of union literature by nonemployee organizers on his property. As with many other rules, however, we recognized an exception. Where "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," ibid., employers' property rights may be "required to yield to the extent needed to permit communication of information on the right to organize," id., at 112….
B.
The threshold inquiry in this case, then, is whether the facts here justify application of Babcock's inaccessibility exception. The ALJ below observed that "the facts herein convince me that reasonable alternative means [of communicating with Lechmere's employees]
were available to the Union," 295 N.L.R.B. No. 15, ALJ slip op., at 9 (emphasis added). Reviewing the ALJ's decision under Jean Country, however, the Board reached a different conclusion on this point, asserting that "there was no reasonable, effective alternative means available for the Union to communicate its message to [Lechmere's] employees." 295 N.L.R.B. No. 15, Board slip op., at 4-5.

We cannot accept the Board's conclusion, because it "rest[s] on erroneous legal foundations." As we have explained, the exception to Babcock's rule is a narrow one. It does not apply wherever nontrespassory access to employees may be cumbersome or lessthan ideally effective, but only where "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," 351 U.S., at 113 (emphasis added). Classic examples include logging camps, … mining camps, … and mountain resort hotels, … Babcock's exception was crafted precisely to protect the § 7 rights of those employees who, by virtue of their employment, are isolated from the ordinary flow of information that characterizes our society. The union's burden of establishing such isolation is, as we have explained, "a heavy one," and one not satisfied by mere conjecture or the expression of doubts concerning the effectiveness of nontrespassory means of communication.

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