The National Labor Relations Board determined that ITT Industries, Inc. violated section 8(a)(1) of the National Labor Relations Act when it refused to permit employees from one ITT plant to distribute pro-union handbills in the parking lot of
I
ITT Industries, Inc. is the parent company of ITT Automotive, Inc., an automotive parts manufacturer that operates ten plants, three of which are located in East Tawas, Tawas City, and Oscoda, Michigan. These are known collectively as the “Northern Plants,” and each is within a short commuting distance of the others. ITT Industries, Inc., 341 N.L.R.B. No. 118, at 1 n. 4 (May 13, 2004). The East Tawas facility (the site of the handbilling in this case) is situated between the other two, 14 miles from the Oscoda facility (the plant at which the handbillers are employed) and 5-6 miles from the Tawas City facility. Id. at 1. The East Tawas and Tawas City plants have about 180 employees each, while the Oscoda plant has about 600 employees. Id. ITT has from time to time transferred employees from one plant to another. Id. at 1 & n. 5.
In 1994, the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) launched a campaign to organize employees of the Northern Plants. It lost a representation election in March 1995, but the National Labor Relations Board (NLRB) found that ITT had improperly interfered with the election and set aside the results. In early 1998, the union remounted its organizing drive. It filed an election petition in June, and the Board scheduled a representation election for July 1998. ITT stipulated that the appropriate bargaining unit would encompass nonsupervisory employees from all three plants.
See ITT Industries, Inc.,
In the spring of 1998, employees of ITT’s Oscoda plant twice attempted to distribute handbills and to solicit signatures in the parking lot of the East Tawas facility. Both incidents occurred at approximately 6:00 a.m. Although the handbillers identified themselves as ITT employees from the Oscoda plant, East Tawas supervisors ordered them to leave or face arrest for trespass. Each time, the handbillers left without incident.
Thereafter, the union filed unfair labor practice charges with the NLRB, which an administrative law judge (ALJ) heard in 1999. To resolve the charge that ITT had wrongfully denied access to its off-site employees, the ALJ used the NLRB’s test for evaluating employer restrictions on off-duty employees’ access to areas surrounding them own work sites. That test, set forth in
Tri-County Medical Center,
provides: “[Ejxcept where justified by business reasons, a rule which denies off-duty employees entry to parking lots, gates, and other outside nonworking areas will be found invalid.”
ITT petitioned for judicial review, contending that the Board had overstepped its authority by granting to off-site employees more than the limited access rights of nonemployee union organizers. The test applicable to the latter, as enunciated in
NLRB v. Babcock & Wilcox Co.,
provides
This court reviewed the Board’s decision in
ITT Industries, Inc. v. NLRB,
The NLRB initially addressed our concerns in
First Healthcare Corp.,
(1) [Ujnder Section 7 of the Act, offsite employees (in contrast to nonemployee union organizers) have a nonderivative access right, for organizational purposes, to their employer’s facilities; (2) ... an employer may well have heightened private property-right concerns when off-site (as opposed to onsite) employees seek access to its property to exercise their Section 7 rights; but (3) ... on balance, the Section 7 organizational rights of offsite employees entitle them to access to the outside, nonworking areas of the employer’s property, except where justified by business reasons, which may involve considerations not applicable to access by off-duty, onsite employees.
Id.
at 648. The Sixth Circuit enforced the Board’s
Hillhaven
order, concluding that the Board had remedied the deficiencies identified in our
ITT Industries
opinion, and that it had reasonably balanced the off-site employees’ section 7 rights against the employer’s private property interests.
First Healthcare Corp. v. NLRB,
The NLRB applied the
Hillhaven
framework when it considered our
ITT Industries
decision on remand in 2004.
See ITT Industries, Inc.,
341 N.L.R.B. No. 118, at 4 (May 13, 2004)
(ITT Remand
Decision). First, it determined that the Oscoda employees had nonderivative section 7 rights because “the offsite employees were seeking to organize the East Tawas employees in a single, three-plant unit which included their own Oscoda plant.”
Id.
Next, the Board examined ITT’s business justification — namely, physical and personal security — for its no-access policy.
Id.
at 5. Finally, the Board concluded that, although “the record demonstrates that [ITT] had legitimate security concerns, ... these concerns do not justify the total exclusion of [ITT’s] offsite
In its petition for review, ITT raises essentially two points. First, it contends that the NLRB’s Hillhaven test is unresponsive to our remand and is an unreasonable interpretation of the NLRA. Second, it argues that, even if the Hillhaven test is proper, its application to the instant case was unreasonable and unsupported by substantial evidence. We address the first point in Part III and the second in Part IV. We begin, however, with a more detailed discussion of the nature of our remand in ITT Industries.
II
Section 7 of the NLRA provides that employees “shall have the right to self-organization, [and] to form, join, or assist labor organizations.” 29 U.S.C. § 157. Section 8(a)(1) declares that it “shall be an unfair labor practice for an employer ... to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in” section 7. Id. § 158(a)(1). Under the Act, “employee” is defined to “include any employee, and shall not be limited to the employees of a particular employer.” Id. § 152(3).
“Like other administrative agencies, the NLRB is entitled to judicial deference when it interprets an ambiguous provision of a statute that it administers.”
ITT Industries,
Our decision in
ITT Industries
traced the two lines of judicial opinions that leave the gap now confronting us. The font of the first line was
Republic Aviation Corp. v. NLRB,
The second line of precedents began with
Babcock,
in which the Supreme Court held that the Board cannot order employ
Continuing to trace the development of the two strands of cases,
see ITT Industries, 251
F.3d at 1001-02 (discussing
Hudgens v. NLRB,
In Babcock, ... we held that the Act drew a distinction “of substance” between the union activities of employees and nonemployees. In cases involving employee activities, we noted with approval, the Board “balanced the conflicting interests of employees to receive information on self-organization on the company’s property from fellow employees during nonworking time, with the employer’s right to control the use of his property.” In cases involving nonem-ployee activities (like those at issue in Babcock itself), however, the Board was not permitted to engage in that same balancing (and we reversed the Board for having done so).
Id.
at 1002 (quoting
Lechmere,
This foray into the case law persuaded us that Supreme Court precedents “simply do not answer the question before us.”
Id.
at 1003. After all, the “distinction ‘of substance’ ” discerned in
Lechmere
and
Bab-cock
was “between the union activities of employees and nonemployees,”
Lechmere,
The Court never has professed to define the scope of the term “employee” in Babcock, Hudgens, Republic Aviation, Eastex, or Lechmere. And these cases certainly do not stand for the proposition that all trespassers, whether they be nonemployee union organizers or off-site employees, possess only derivative § 7 access rights.
ITT Industries, 251 F.3d at 1003. Because “the Court’s cases do not bespeak a clear answer, and ... the statute is silent on the point,” we concluded that “we must defer to the Board’s interpretation if reasonable.” Id.
The problem with the Board’s order, however, was that “we simply [could not] assess the reasonableness of the Board’s decision to apply the
Tri-County
test to off-site employees.”
Id.
at 1004. First, the Board had failed “even
to
acknowledge that the question of off-site employee access rights was an open one,” but rather had “decided
sub silentio
that § 7 guarantees all off-site employees ... some measure of free standing, nonderivative access rights.”
Id.
Second, “[n]oticeably absent from [the Board’s] discussion [was] any mention of the employer’s property rights or the different interpretive considerations presented by trespassing employees.”
Id.
at 1005. On the one hand, the Board had failed to offer “justifications for extending greater access rights to trespassing employees than trespassing nonemployee un
It should be clear from this discussion that our decision in ITT Industries did not bar the NLRB from concluding, on remand, that off-site employees possess non-derivative section 7 rights to access outside, nonworking areas of their employer’s property, or from adopting a test that rendered ITT’s no-access policy an unfair labor practice. Rather, we merely concluded that “the Board was obliged to engage in considered analysis and explain its chosen interpretation.” Id. at 1004. We cautioned, however, that if the Board chose to reaffirm its prior decision, it would have to: (1) explain why it believes off-site employees possess a nonderivative right of access under section 7; (2) take into consideration the property interests of the employer; and (3) devise a balancing test that accommodates an employer’s heightened property concerns when the access of off-site rather than on-site employees is at issue.
In the following Part, we consider whether the Board satisfied these requirements of our remand, and whether the balancing test it adopted represents a reasonable interpretation of the NLRA.
Ill
In order to justify the approach it adopted in this case, the NLRB may rely both on the explanation it offered in its remand decision and on the more extensive rationale it set forth in
Hillhaven
and incorporated into the remand decision. As we said in
ITT
Industries, “the Board is not obligated to justify its interpretation anew with every application if it has done so adequately in a previous decision.”
1. The first problem we discerned was the Board’s failure to state whether, and if so why, off-site employees (unlike nonemployee organizers) possess a non-derivative right of access under section 7. The Board’s post-remand decisions at last addressed the point directly, concluding that off-site employees
do
“have a nonderi-vative access right, for organizational purposes, to their employer’s facilities.”
ITT Remand Decision,
341 N.L.R.B. No. 118, at 3 (quoting
Hillhaven,
As the Board stated in
Hillhaven,
off-site employees “are not only ‘employees’ within the broad scope of Section 2(3) of the Act, they are ‘employees’ in the narrow sense: ‘employees of a particular employer’ (in the Act’s words), that is, employees of the employer who would exclude them from its property.”
ITT objects to the Board’s reliance on this “own interests” argument, contending that the
Hillhaven
test does not actually require that the off-site employees and their on-site targets be similarly situated before access can be compelled. Counsel for the NLRB and UAW disagree, each insisting that similarity is a threshold requirement of the test.
See
Oral Arg. Tape at 38:35-39:21, 50:04-51:13. There is no question that there is a degree of ambiguity in the text of
Hillhaven,
with some passages making no mention of a similarity requirement,
see, e.g.,
But we sit in judgment on the NLRB’s decision in the ITT remand, not on the decision in Hillhaven per se. And in describing its understanding of Hillhaven, the ITT remand decision certainly appeared to treat a finding of similarity as a condition precedent for a finding that the handbillers had nonderivative section 7 rights — itself a prerequisite for application of Hillhaven’s balancing test. See ITT Remand Decision, 341 N.L.R.B. No. 118, at 3 (“With respect to the section 7 rights of offsite employees, the Board stressed [in Hillhaven ] that when offsite employees seek to organize similarly situated employees at another employer facility, the employees seek strength in numbers ... ultimately to improve their own working conditions.” (emphasis added)). More important, as we discuss in Part IV, there is no doubt that in this case the NLRB’s application of the Hillhaven test turned on the fact that the Oscoda and East Tawas employees were similarly situated. That is a sufficient basis for us to conclude that there is a reasonable connection between the rationale the Board offered and the test it applied in this case.
2. The second problem that
ITT Industries
discerned in the NLRB’s first
ITT
decision was the Board’s failure to take into account the property interests of the employer vis-á-vis the trespassing, off-site employees. Following our remand, the Board did expressly consider those interests.
Hillhaven
acknowledged our observation that “offsite employees — in contrast to onsite employees ... — may be regarded as trespassers by the employer,” and that “this fact must be considered in weighing the access rights of offsite employees.”
In examining that context, the Board noted that “the situation of offsite employees implicates some distinct considerations” from that of either nonemployees or on-site employees.
Hillhaven,
But while the Board thus determined that access for off-site employees impinged less upon an employer’s property interests than did access for nonemployees, it cautioned that it was
not
saying “that in protecting its interests and preserving its property rights, an employer dealing with
3. The final problem with the NLRB’s first
ITT
decision was that it appeared to adopt for off-site employees the same “balancing test used to delineate the scope of on-site employee access rights,” and thus did not “take[] proper account of an employer’s predictably heightened property concerns” when off-site employees are involved.
ITT Industries,
ITT disputes the NLRB’s contention that the
Hillhaven
test really is different from the
Tri-County
test applied to on-site employees, since both require the employer to provide access unless justified by business reasons.
Hillhaven,
however, not only promised that the Board would take account of the employer’s heightened property concerns in the case of off-site employees, but also declared that the business justifications for denying access to off-site employees “may involve considerations not applicable to access by off-duty, onsite employees.”
ITT Remand Decision,
341 N.L.R.B. No. 118, at 3 (quoting
Hillhaven,
All of this suggests that the Board is committed, at least in the abstract, to analyzing an employer’s business justifications with greater deference when off-site rather than on-site employees are involved. As we shall see in Part IV, the Board
IV
In this Part, we consider ITT’s contention that even if the Hillhaven test is proper, its application to the instant case is unreasonable and unsupported by substantial evidence. 3 We conclude, to the contrary, that the Board reasonably applied Hillhaven and that its findings were supported by substantial evidence. The Board’s determination that ITT violated section 8(a)(1) by barring the off-site employees from handbilling in its parking lot was therefore permissible.
1. The NLRB began its analysis on remand by considering the scope of the section 7 rights of the handbilling employees.
See ITT Remand Decision,
341 N.L.R.B. No. 118, at 3. “Significantly,” it noted, “the offsite employees were seeking to organize the East Tawas employees in a single, three-plant unit which included their own Oscoda plant.”
Id.
Indeed, the employer had stipulated to the appropriateness of such a unit.
See First ITT Decision,
ITT correctly points out that, in
Hillha-ven,
the Board declared that “a similar self-interest” can arise “even where the unorganized employees may be in a different bargaining unit.”
Hillhaven,
2. The Board next addressed the question of ITT’s private property interests.
See id.
ITT had “prohibited access to its parking lot to the Oscoda employees based on security considerations.”
Id.
In support of the no-access rule, ITT cited “various incidents of vandalism to vehicles and ... threats to personal security that occurred over the past few years.”
Id.
These involved instances in which the window of a car was shattered, the lug nuts on a supervisor’s car were loosened, car tires were
The Board acknowledged that ITT had barred the off-site employees from the parking lot on the basis of a neutral rule that denied access to any person not employed at East Tawas, with the exception of relatives and friends of employees. (The latter were permitted to drop off and pick up employees in the parking lot, but were not allowed to get out of their vehicles. See id. at 4.) The Board also found that the employer had advanced “legitimate security concerns” that would have to be considered in assessing whether off-site employees could be barred. Id. “[R]easonable measures to protect against legitimate security threats do not,” the Board said, “ ‘take a back seat’ to employees’ Section 7 rights.” Id. at 5. Thus, the question was not whether any limitations on access by off-site employees were permissible, but whether ITT’s concerns “justified] the total exclusion of [its] offsite employees from its parking lot.” Id. at 4 (emphasis added); see id. at 5.
3. Applying the Hillhaven balancing test, the Board concluded that ITT’s security concerns did not justify wholly denying its off-site employees the access they sought. The remand decision gave three reasons for that conclusion.
First, “the handbillers were not strangers to [ITT]; they were [ITT’s] employees.” Id. at 4. The Board noted that the handbillers had announced their identity and purpose when they came on the property, and that there was “no evidence that [ITT] questioned their intent to handbill or their claim to be its employees.” Id. Although ITT, “of course, had the authority to require the Oscoda employees to specifically verify that they were its employees, ... it did not do [so] here.” Id. at 4 n. 35. The Board found that, as identified employees of ITT, the handbillers’ “presence did not implicate the security concerns posed by the presence of nonemployees on [ITT’s] property,” as was the case for several of the incidents that had generated the no-access policy. Id. at 4. In particular, the Board found that, having “identified themselves as employees ..., it was understood that they were subject to discipline if they engaged in vandalism or other misconduct.” Id.
Second, the NLRB noted that the Osco-da employees “attempted to handbill at 6 a.m., a time when there was a lot of activity in the parking lot.” Id. The Board reasonably observed that this “was hardly a time when the parking lot was ... open to unobserved vandalism, such as had occurred in the past.” Id. Moreover, there was “absolutely no evidence of any misconduct or proclivity toward such misconduct by any of the Oscoda employees who were attempting to handbill.” Id.
Third, the employer did not raise any other property concerns. There was “no evidence, or claim, that the handbillers would cause any disruption to traffic in the parking lot.” Id. Nor did the record “demonstrate the possibility of any unique logistical problems that might have arisen from the handbilling.” Id.
The Board concluded, in view of these factors, that ITT’s “complete refusal to allow handbilling by its own offsite employees was not reasonably tailored to address its concerns about protecting its property against vandalism or violence against its onsite employees.” Id. We cannot say that this application of the Hillha-ven test was arbitrary or capricious.
ITT raises two further challenges to the application of the Board’s balancing test. First, it contends that the NLRB imper-
We do not read the NLRB’s remand decision that way. To the contrary, the Board acknowledged that “the decision to install cameras or hire security guards is an issue of [ITT’s] own business judgment,” and insisted that “we do not seek to substitute our judgment for that of [ITT].” Id. An ITT supervisor had testified that, instead of installing cameras or hiring guards, ITT relied on “an informal practice whereby ‘everybody kind of looks out for each other.’” Id. The Board found that ITT’s “claimed need” for a rule totally excluding off-site employees “must be afforded some degree of skepticism when there are other measures ... that have not been taken because [ITT ] believes that it is enough to satisfy security concerns that everyone ‘looks out for one another.’ ” Id. (emphasis added). From this, the Board simply concluded that barring off-site employees from the parking lot at 6 a.m. was not justified by ITT’s asserted rationale — security in the lot — since there was sufficient activity at that time to ensure that “looking] out for one another” would take care of the problem.
ITT also contends that the availability of other means of communicating with thé East Tawas employees, specifically the ability to handbill them off-site, compels the conclusion that ITT’s no-access rule was lawful. As the Board pointed out, however, “inquiry into such considerations ‘is made only when
nonemployees
are on the employer’s property.’ ”
Id.
at 5 (quoting
First Healthcare,
V
The Supreme Court “has emphasized often that the NLRB has the primary responsibility for developing and applying national labor policy.”
NLRB v. Curtin Matheson Scientific, Inc.,
We conclude that the Board has constructed a rational framework for evaluating the efforts of off-site employees to conduct organizing activity in outside, nonworking areas of their employer’s property, and that the Board rationally applied that framework to the circumstances of this case. Accordingly, we deny ITT’s petition for review and grant the NLRB’s cross-application for enforcement.
So ordered.
Notes
. Just prior to the date of the scheduled election, and after filing the unfair labor practice charge that gave rise to this case, the UAW withdrew its election petition.
. In its briefs, ITT argued that on-site employees are unlike off-site employees because the former are “rightfully on the employer’s property [and] do not become trespassers by engaging in Section 7 activities.” Pet'r Reply Br. at 5;
see
Pet’r Br. at 30-32. But this just begs the question. Purely from the perspective of trespass law, on-site employees may exceed the scope of their invitation to access, and so not be "rightfully” on, the employer's property when they handbill at a place or time forbidden by their employer.
See
RESTATEMENT (SECOND) OF TORTS § 168 (1965) (stating that a “conditional or restricted consent to enter land creates a privilege to do so only in so far as the condition or restriction is complied with”);
id.
§ 170 (providing that a "consent given by a possessor of land to the actor's presence on the land during a specified period of time does not create a privilege to enter or remain on the land at any other time”);
see also id.
§ 168 cmt. b, illus. 2. Thus, given that section 7 nonetheless entitles on-site employees to engage in organizational activities on company property, the decisive question is still whether section 7 entitles off-site employees to some form of access as well.
Cf. Lechmere, 502
U.S. at 531,
.
See Lee Lumber & Bldg. Material Corp. v. NLRB,
.
Cf. Speedrack Prods. Group, Ltd. v. NLRB,
. "Because it is to the Board that Congress entrusted the task 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,’ that body, if it is to accomplish the task which Congress set for it, necessarily must have authority to formulate rules to fill the interstices of the broad statutory provisions.”
Curtin Matheson,
.
See, e.g., Allentown Mack Sales & Serv., Inc. v. NLRB,