In
NLRB v. Babcock & Wilcox Co.,
In the instant cases, representatives and members of petitioner unions sought access to store-owned properties to distribute literature to the stores’ would-be customers. In each instance, the unions were denied, or otherwise restricted, in their attempts to gain trespassory access to private property. Complaints were filed with the National Labor Relations Board (“NLRB” or “Board”). Applying the rationale of Babcock, the Board ruled that the owners were permitted to restrict access because petitioners failed to show that the customers were not reasonably accessible through nontrespassory means of communication.
The unions claim that the Board erred in applying the Babcock doctrine, arguing that Babcock and Lechmere involved union attempts to organize employees (a “derivative” exercise of the employees’ section 7 right to self-organization), 2 whereas here the unions’ attempted communications were directed at the stores’ customers (an alleged direct exercise of the union members’ right to engage in concerted activities for mutual aid or protection). The unions also seek review of the Board’s decision requiring a union to show that mass media advertising is not a reasonably effective alternative for communicating the union’s message in order to invoke the “inaccessibility exception.”
We find no merit in petitioners’ attempts to distinguish Babcock and Lechmere. Under the established case law, it would make no sense to hold that nonemployees have a *294 greater right of access when attempting to communicate with an employer’s customers than when attempting to communicate with an employer’s employees. Indeed, if anything, under Supreme Court jurisprudence, the hierarchy of rights under section 7 is just the opposite of what the unions assert: Babcock and its progeny indicate that, when it comes to balancing an employer’s property rights against rights protected under section 7 of the NLRA, the interest of nonemployees in organizing an employer’s employees is stronger than the interest of nonemployees engaging in protest or boycott activities directed at an employer’s customers. The cases cited approvingly by the Court in Lechmere manifest this hierarchy. Furthermore, the Board’s ruling regarding mass media advertising comports with the discussion in Lechmere regarding the narrowness of the inaccessibility exception. Although Lech-mere itself involved organizational activity, we find no support for the suggestion by petitioners that the exception should be easier to satisfy in the context of nonorganiza-tional activity. Accordingly, the petitions for review are denied.
I. The SupREMe CoüRt’s Deoision IN LECHMERE
At bottom, the unions assert that, in construing Lechmere to apply to nonorganizational activity, the NLRB has impermissibly extended the reach of Babcock. According to petitioners, the issues here have yet to be addressed by the Supreme Court, and the Board erred in suggesting otherwise. The Board, on the other hand, found that whatever doubts existed under Babcock regarding the rights of nonemployee union advocates to gain access to an employer’s private property were resolved by the Court’s decision in Lechmere. We agree with the Board that, although Lechmere does not purport to decide the precise questions at hand in these cases, the Court’s rationale in Lechmere disposes of the issues raised by petitioners. In fact, for us to rule otherwise would require a dismantling of the Babcock doctrine, something certainly not endorsed by the Court in Lechmere.
In
Lechmere,
the Court reversed an NLRB ruling that a retail store owner had violated the NLRA by barring nonemployee union organizers from entering its property to distribute union literature. The Board had based its ruling on a multi-factor balancing test set forth in
Jean Country,
The Court found that, “[a]t least as applied to nonemployees,
Jean Country
impermissibly ... erod[ed] Babcock’s general rule that ‘an employer may validly post his property against nonemployee distribution of union literature,’ ” a general rule that the
Lechmere
Court expressly reaffirmed.
*295
In
Lechmere,
the Court also noted that section 7, “[b]y its plain terms ... confers rights only on
employees,
not on unions or their nonemployee organizers.”
According to the Court, those “limited circumstances” are defined by the “limited scope” of the inaccessibility exception recognized in
Babcock
that applies “where ‘unique obstacles’ prevent[ ] nontrespassory methods of communication.”
Id.
at 540, 535,
The core idea of Lechmere appears to be that, under section 7 of the NLRA, the private property interest of an employer is sacrosanct as against uninvited nonemployees, except in the narrow circumstance where the nonemployees are union organizers who have no other reasonable alternative means of communicating with the employer’s employees. There is absolutely nothing in Lech-mere (nor in the Court’s decisions preceding it) suggesting that the rights of nonemploy-ees are enhanced when access to private property is sought by nonemployees to communicate with the employer’s customers, rather than the employer’s employees.
With this background in mind, we turn to the cases here before us.
II. FACTS AND PROCEDURAL HISTORIES op Petitioners’ Cases
A. Oakland Mall II
In July 1988, Sears, Roebuck & Co. (“Sears”) canceled a long-standing home delivery service contract with Ryder DPD (“Ryder”), and contracted instead with Leaseway Trucking. As a result of losing its contract with Sears, Ryder laid off about 100 drivers. In response, the International Brotherhood of Teamsters Local 243 (“Teamsters”), who represented Ryder’s employees, prepared a handbill for the laid-off drivers to distribute to would-be customers of Sears, urging them not to patronize Sears until Sears once again contracted with Ryder.
On August 2, 1988, six laid-off Ryder drivers, accompanied by one union representative, began to distribute the handbill at two of the eight exterior entrances, and at the one mall entrance, to the Sears store at the Oakland Mall in Troy, Michigan. Each distribution location was on Sears’ property. Similarly, on August 9 and 10, 1988, and again on September 7,1988, the laid-off drivers sought to distribute the same handbill at four entrances to the Sears store in the Macomb Mall in Roseville, Michigan. Three of these entrances were on Sears’ property, and one entrance was on mall property. The handbillers’ activities were limited to distributing the handbill and asking customers to speak to Sears’ management on behalf of the laid-off drivers; no signs were carried or displayed, and there was no picketing at either Sears store.
On each occasion, Sears and/or mall management forced those distributing handbills to leave the premises. While Sears flatly prohibited the handbilling on its property, Macomb Mall Associates (“Macomb Mall”) sought to enforce its general, nondiserimina-tory policy of requiring nontenant organizations wishing to engage in solicitation or petitioning on mall property to obtain, and to *296 name Macomb Mall as an additional insured under, a liability insurance policy covering bodily injury.
The Teamsters filed unfair labor practice charges against Sears and the two malls, alleging that exclusion of the handbillers from property owned by Sears and the malls violated section 8(a)(1) of the NLRA, 29 U.S.C. § 158(a)(1). The NLRB initially affirmed the determination of an Administrative Law Judge (“ALJ”) that Sears and the malls had violated the Act.
See Oakland Mall, Ltd.,
On remand, the NLRB held that the
Bab-cock
analysis affirmed in
Lechmere
is applicable to nonemployee consumer boycott activities, such as the handbilling at issue in
Oakland Mall I. Oakland Mall, Ltd.,
The Board decided that the union in the present case had made no such showing; indeed, the Board found that the union did not consider the option of mass-media communication of its message to Sears’ potential customers. Id. Thus, the Board majority ruled that the union had failed to carry its heavy burden of proving “unique obstacles” to the communication of its consumer boycott message to Sears’ customers, and concluded that Sears and Macomb Mall did not act unlawfully in respectively prohibiting and imposing an insurance requirement on the union’s handbilling on their properties. 4 Id. at 1164.
B. Loehmann’s Plaza II
In the second case under review, representatives of United Food and Commercial Workers Union Local No. 880, AFL-CIO (“UFCW”) directed both picketing and hand-billing at the customers of Makro, Inc. (“Makro”), which operates a retail store in a strip mall owned by Loehmann’s Plaza in Willoughby Hills, Ohio. The picket signs and leaflets implored customers not to shop at the Makro store because Makro’s treatment of its non-union employees might jeopardize union-negotiated wage and benefit standards for retail employees in the area. This “area standards” activity was conducted by representatives of UFCW, union members who worked at stores other than Makro, and paid pickets including family and friends of union members and representatives.
Makro and the mall owner directed the picketers and handbillers to leave their positions at the entrances and exits of the Makro store. When they refused, Makro and the mall owner obtained a state-court injunction preventing more than certain numbers of picketers from taking up positions in front of Makro’s store and the entrance to the parking lot, and restraining the parking-lot picketers from coming within 25 feet from the *297 front of the building. The union, in turn, filed an unfair labor practice charge, alleging a violation of section 8(a)(1).
The Board initially ruled that Makro and the mall owner had acted unlawfully.
Makro, Inc.,
The NLRB reversed its initial decision, and instead decided to dismiss the union’s complaint.
Makro, Inc.,
III. APPLICATION OF THE BABCOCK RüLE Outside the ORGANIZATIONAL Context
At heart, this case is a simple one. Babcock establishes (and Lechmere reaffirms) a general rule under which an employer may deny access to nonemployees seeking to trespass on the employer’s property. In the cases at hand, petitioners’ activities involved the trespass of nonemployees onto employers’ properties, in response to which the employers barred them access. No recognized right under section 7 has been shown to apply; therefore, the employers’ actions were not unlawful under the NLRA. There should be no more to the matter than that. However, petitioners attempt to obfuscate this straightforward analysis by proffering artificial distinctions between the section 7 rights asserted in Babcock and Lechmere, and those being asserted here.
In particular, petitioners make much of the fact that
Lechmere
involved organizational section 7 activity, and argue that the Court’s reasoning in that case does not apply to consumer boycott and “area standards” activities directed at an employer’s customers. We decline to read
Lechmere
so narrowly. As the Board has observed, there is “no suggestion in the Court’s opinion ... that it focused on organizing activities for any reason other than that
Lechmere
was an organizing case, and that the Court was simply (and prudently) deciding the case before it.”
Leslie Homes, Inc.,
Moreover,
Lechmere
clearly does not purport to overrule, or even modify, prior Court precedent dealing with the tension between property rights and alleged section 7 rights. The precedent cited approvingly in
Lechmere
establishes that, if there are any rights at all to be asserted outside the organizational context,
Babcock
applies.
Compare Sears,
*298
Further, assuming, arguendo, that nonemployees have rights to assert in the nonorganizational context, it makes sense that the
Babcock
rule reaffirmed in
Lechmere
would apply with no less force in the context of area standards or consumer boycott activities. Supreme Court precedent clearly establishes that, as against the private property interest of an employer, union activities directed at consumers represent weaker interests under the NLRA than activities directed at organizing employees. A long history of.eases manifests a hierarchy among section 7 rights, with organizational rights asserted by a particular employer’s own employees being the strongest, the interest of nonemployees in organizing an employer’s employees being somewhat weaker, and the interest of uninvited visitors in undertaking area standards activity, or otherwise attempting to communicate with an employer’s customers, being weaker still.
5
Thus, “[u]nder the § 7 hierarchy of protected activity imposed by the Supreme Court,” nonemployee activity in which “the targeted audience was not [an employer’s] employees but its customers” “warrants even
less
protection than non-employee organizational activity.”
NLRB v. Great Scot, Inc.,
Therefore, given that “nonemployee organizational trespassing ha[s] generally been prohibited except where ‘unique obstacles’ prevented nontrespassory methods of communication,”
Lechmere,
Finally, the distinction urged by petitioners between derivative and nonderivative section 7 rights is unsupported by the case law. The alleged distinction can be traced back to
Babcock,
where the Court observed that the strength of nonemployee organizers’ interest in access to an employer’s property flows from, and is limited by, the degree to which the target employees’ right of self-organization depends on their “ability ... to learn the advantages of self-organization from others.”
In effect, the Court in
Babcock
made a onee-and-for-all determination that, in the absence of an inaccessibility showing, the locus of accommodation for cases involving trespass by nonemployee union adherents will always fall in the range favoring denial of access, and
Lechmere
reaffirmed that determination.
8
And although
Babcock
and
Lechmere
were organizational eases, the reasoning therein is equally applicable in any situation where the exercise of a section 7 right requires communication of a message to a target group.
Cf. Sparks Nugget, Inc. v. NLRB,
IV. The Inaccessibility Exception
In light of our conclusion that Babcock, as reaffirmed in Lechmere, applies to the present cases, there is no reason to think that Lechmere’s emphasis on the narrowness *300 of the inaccessibility exception to the general rule should not be fully applicable as well. Indeed, given that the organizational activity at issue in Lechmere itself appears to represent a stronger section 7 interest than the area standards and consumer boycott activities at issue here, it would be perverse to find that the threshold for the inaccessibility exception should be lower in this ease than in Lechmere. 9
In addition, the Board’s statement in
Jean Country
that “generally it will be the exceptional case where the use of [forms of the mass media] will be feasible alternatives to direct contact,”
The Court’s discussion clearly does not countenance a rule that assumes the ineffectiveness of paid mass media advertising and obviates the need for the union to meet its burden of establishing that “unique obstacles” render the target audience isolated from nontrespassory methods of communication. Thus, in
Oakland Mall II,
the Board properly reconsidered its discussion of mass media communication in
Jean Country,
and violated no right of petitioner’s when it adopted a rule that comports with
Lechmere
by requiring a “showing] that the use of the mass media ... would not be a reasonable alternative means for the Union to communicate its message.”
See Oakland Mall II,
V. CONCLUSION
For the reasons set forth above, the petitions for review are denied.
So ordered.
Notes
. Section 7 provides that:
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection....
29 U.S.C. § 157 (1988). Section 8(a)(1) of the NLRA provides that "[i]t 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].” 29 U.S.C. § 158(a)(1) (1988).
.
See
29 U.S.C. § 157 (1988);
see also Lechmere,
. The Board in Jean Country stated:
[I]n all access cases our essential concern will be the degree of impairment of the Section 7 right if access should be denied, as it balances against the degree of impairment of the private property right if access should be granted. We view the consideration of the availability of reasonably effective alternative means as especially significant in this balancing process.
. On remand, the Board did not address the issue of whether Oakland Mall, Ltd. (“Oakland Mall”) had violated the NLRA, because Oakland Mall did not file exceptions to the ALJ’s finding that it violated the Act.
Oakland Mall II,
.
Compare Republic Aviation Corp. v. NLRB,
. The
Babcock
Court observed that, because employees’ exercise of their section 7 right of self-organization depends on communication with organizers, the organizers’ interest in trespassory access to an employer’s property becomes paramount when such access is the only reasonably available means of communicating with the employees about organizing; and in that situation, "the employer must allow the union to approach his employees on his property.”
See
. For example, in
Metropolitan Dist. Council of Phila. and Vicinity United Bhd. of Carpenters and Joiners of Am. v. NLRB,
.See Lechmere,
. In
Sparlcs Nugget,
the Ninth Circuit went further by finding that the inaccessibility exception does not apply
at all
in situations where customers, and not employees, are the target audience; alternatively, the court stated that, even if the exception were applicable,
Lechmere
would require a finding that the intended audience is presumptively not inaccessible "because the targets of the union protest do not reside on the employer's property.”
. The Court found no occasion to address the merits of the Board’s conclusion that the local newspaper advertising used by the union organizers was not reasonably effective, because the Court found that "other alternative means of communication were readily available” to the union.