910 F.3d 725
3rd Cir.2018Background
- ImageFirst, a nonunion laundry facility in Columbia, PA, confronted four nonemployee union leafletters on December 16, 2015; leafleting occurred on a grassy strip, a concrete curb, the shoulder of Prospect Road (a public right-of-way), and occasionally a short distance into ImageFirst’s driveway.
- General manager Bryan Cunningham told the leafletters to leave; they moved to the shoulder. Cunningham nonetheless threatened to call, and then called, police claiming trespass; officers told him the shoulder was public and allowed the leafletters to remain.
- The NLRB General Counsel charged ImageFirst with unfair labor practices under Section 8(a)(1) for (among other things) prohibiting leafleting in the public right-of-way, attempting to remove leafletters from the right-of-way, and threatening/summoning police.
- The ALJ found (1) ImageFirst violated Section 8(a)(1) by forbidding leafleting in the public right-of-way and by attempting to remove leafletters; (2) the ALJ also found the leafletters made brief, infrequent forays onto private property and characterized any trespasses as de minimis; and (3) the ALJ concluded the company’s call to police was not justified by safety or other reasonable property concerns.
- The NLRB panel affirmed the ALJ’s rulings (adopting credibility findings) and held calling the police violated Section 8(a)(1), reasoning ImageFirst lacked a reasonable property-based motivation because the leafletters were on the public shoulder when police arrived.
- The Third Circuit granted enforcement in part but reversed as to the finding that threatening/summoning police violated Section 8(a)(1), holding the Board failed to account for evidence (and ALJ findings) showing repeated, ongoing incursions onto ImageFirst’s private property that gave rise to a reasonable property-based concern.
Issues
| Issue | NLRB (Plaintiff) Argument | ImageFirst (Defendant) Argument | Held |
|---|---|---|---|
| Whether prohibiting union leafleting in the public right‑of‑way violated Section 8(a)(1) | Prohibition of leafleting in public right‑of‑way unlawfully interfered with Section 7 rights | Initially argued property rights extended to the shoulder (fee title to centerline) but conceded prohibition was improper | Held for NLRB: enforcement granted; violation upheld |
| Whether attempting to remove leafletters from the public right‑of‑way violated Section 8(a)(1) | Attempted removal of leafletters from public right‑of‑way unlawfully interfered with Section 7 rights | Argued authority to exclude from private property and driveway; did not dispute removal from shoulder was improper | Held for NLRB: enforcement granted; violation upheld |
| Whether threatening/summoning police violated Section 8(a)(1) | Calling police after leafletters had moved to the public shoulder was motivated solely to remove protected activity and thus unlawful | Cunningham was motivated by reasonable concern for property due to repeated forays onto driveway/grass and could reasonably involve police | Held for ImageFirst (NLRB’s finding reversed): Board failed to address evidence of repeated incursions; concern for property was objectively reasonable, so enforcement denied as to this finding |
| Whether brief incursions onto private property were de minimis and irrelevant to justification for police call | De minimis incursions did not justify police involvement; focus should be on where leafletters stood when police arrived | Argued that repeated brief incursions and at least one driveway foray observed by police justified concern and police contact | Held: Court found ALJ’s factual findings about forays could not be ignored; Board’s failure to account for them undermined its conclusion that police call was solely to remove protected activity |
Key Cases Cited
- Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992) (nonemployee organizers generally have no right to access employer’s private property)
- Babcock & Wilcox Co., 351 U.S. 105 (1956) (employer property rights may yield when employees’ residences place them beyond reach of union communication)
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951) (substantial-evidence review requires consideration of evidence that detracts from agency findings)
- Trimm Assocs., Inc. v. NLRB, 351 F.3d 99 (3d Cir. 2003) (plenary review of legal questions and deference to Board’s reasonable NLRA interpretations)
- NLRB v. Calkins, 187 F.3d 1080 (9th Cir.) (discussing employer burden to show property interest to exclude union representatives)
- Advanced Disposal Servs. East, Inc. v. NLRB, 820 F.3d 592 (3d Cir. 2016) (application of substantial-evidence standard to Board findings)
- Lakeland Health Care Assocs., LLC v. NLRB, 696 F.3d 1332 (11th Cir. 2012) (agency may not ignore record evidence detracting from its findings)
- O’Neil’s Markets v. United Food & Commercial Workers, 95 F.3d 733 (8th Cir.) (discussion of Board’s property-rights assessments and enforcement)