ITT Industries, Inc. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 12, 2005 Decided June 28, 2005

No. 04-1172

ITT INDUSTRIES, INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE &

AGRICULTURAL IMPLEMENT WORKERS OF AMERICA,

AFL-CIO,

INTERVENOR

Consolidated with

04-1198

On Petition for Review and Cross-Application for

Enforcement

of an Order of the

National Labor Relations Board

Curtis L. Mack argued the cause for petitioner. With him

on the briefs were Mark L. Keenan and Brennan W. Bolt.

2

Anne M. Lofaso, Attorney, National Labor Relations Board,

argued the cause for respondent. With her on the brief were

Arthur F. Rosenfeld, General Counsel, John H. Ferguson,

Associate General Counsel, Aileen A. Armstrong, Deputy

Associate General Counsel, and Linda Dreeben, Assistant

General Counsel.

James B. Coppess argued the cause for intervenor. With

him on the brief were Lynn K. Rhinehart and Blair K. Simmons.

Before: RANDOLPH, GARLAND, and ROBERTS, Circuit

Judges.

Opinion for the court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: 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 another ITT facility. ITT petitions

for review of that decision. Because we conclude that the Board

reasonably interpreted the Act, we deny the petition and grant

the Board’s application for enforcement of its order.

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

3

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., 331

N.L.R.B. 4, 6 (2000) (First ITT Decision).1

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

1

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.

4

for evaluating employer restrictions on off-duty employees’

access to areas surrounding their own work sites. That test, set

forth in Tri-County Medical Center, provides: “[E]xcept 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.” 222 N.L.R.B. 1089,

1089 (1976). Applying that rubric, the ALJ found ITT’s

proffered business justifications inadequate and concluded that

ITT had violated section 8(a)(1) of the National Labor Relations

Act (NLRA). In 2000, the Board affirmed. See First ITT

Decision, 331 N.L.R.B. at 4.

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 that employers may

bar nonemployee union organizers from company property,

unless employees are otherwise “beyond the reach of reasonable

union efforts to communicate with them.” 351 U.S. 105, 113

(1956); see Lechmere, Inc. v. NLRB, 502 U.S. 527, 534 (1992).

Nonemployees’ access is so limited because “any right they may

have to solicit on an employer’s property is a derivative of the

right of that employer’s employees to exercise their organization

rights effectively.” Sears, Roebuck & Co. v. San Diego County

Dist. Council of Carpenters, 436 U.S. 180, 206 n.42 (1978). In

ITT’s view, the Board should have applied Babcock, not Tri-

County, to resolve the UAW’s charges.

This court reviewed the Board’s decision in ITT Industries,

Inc. v. NLRB, 251 F.3d 995, 1006-07 (D.C. Cir. 2001). We

noted that although the Supreme Court’s “access cases do not

foreclose the possibility that off-site employees might enjoy

some measure of free-standing, nonderivative access rights, they

do make clear that the reasonableness of such an interpretation

5

depends in large part on the Board’s considered justifications for

extending greater access rights to trespassing employees than

trespassing nonemployee union organizers.” Id. at 1004.

Because we concluded that the Board had failed -- in several

respects detailed in Part II below -- “to engage in considered

analysis and explain its chosen interpretation,” id., we vacated

the Board’s determination that ITT had committed an unfair

labor practice and remanded the case for further proceedings.

The NLRB initially addressed our concerns in First

Healthcare Corp., 336 N.L.R.B. 646 (2001) (Hillhaven), a case

that posed the same issues as our remand but reached the Board

first. The Board summarized its conclusions as follows:

(1) [U]nder 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 offsite (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, 344 F.3d 523, 538, 539-40 (6th Cir.

2003).

6

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 employees from its parking lot.” Id.

Because the employer had thus “failed to present a business

reason sufficient to justify prohibiting [its off-site employees’]

access to the parking lot,” the Board reaffirmed its earlier

finding that ITT violated section 8(a)(1). Id. at 7.

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

7

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, 251 F.3d at 999

(quoting Lechmere, 502 U.S. at 536 (citing Chevron U.S.A. Inc.

v. NRDC, 467 U.S. 837, 842-43 (1984))). As we noted in ITT

Industries, section 7 is ambiguous -- for purposes of this case --

because it “does not itself speak of access rights, much less the

access rights of off-site employees.” Id. at 1000. That

ambiguity “counsel[s] Chevron deference” -- unless “courts

have settled on [the] statute’s clear meaning,” in which event we

must “adhere to that determination under the doctrine of stare

decisis.” Id. (quoting Lechmere, 502 U.S. at 536-37). And as

we further noted, the courts have not settled on the NLRA’s

clear meaning regarding the issues raised by the petitioner. To

the contrary, “[n]o court has decided the specific question we

face here, i.e., the scope of the Board’s authority under §§ 7 and

8(a)(1) to prevent employers from prohibiting parking lot access

to off-site employees who are seeking to engage in

organizational activities that would be lawful if pursued by on-

site employees.” Id.

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, 324

U.S. 793 (1945). There, the Supreme Court affirmed the

NLRB’s ruling that an employer may not prohibit distribution of

organizational literature by off-duty employees in nonworking

areas, without a showing that the ban is necessary to maintain

plant discipline or production. See id. at 803 n.10, 804; see also

Eastex, Inc. v. NLRB, 437 U.S. 556, 570-71 (1978). The

8

NLRB’s Tri-County balancing test followed from Republic

Aviation. See Tri-County, 222 N.L.R.B. at 1089 (relying on

Bulova Watch Co., 208 N.L.R.B. 798, 798 (1974), which

adopted the dissent’s interpretation of Republic Aviation in GTE

Lenkurt, Inc., 204 N.L.R.B. 921, 923 (1973)).

The second line of precedents began with Babcock, in

which the Supreme Court held that the Board cannot order

employers to grant nonemployee union organizers access to

company property, absent a showing that employees are

otherwise inaccessible through reasonable efforts. See Babcock,

351 U.S. at 112. There, the Court faulted the Board for

“fail[ing] to make a distinction between rules of law applicable

to employees and those applicable to nonemployees.” Id. at

113. As we explained in ITT Industries, Babcock stands for the

proposition that “nonemployees’ access rights are merely

derivative of on-site employees’ organizational rights;

nonemployees enjoy no independent, free-standing § 7 right of

access.” ITT Industries, 251 F.3d at 1000.

Continuing to trace the development of the two strands of

cases, see ITT Industries, 251 F.3d at 1001-02 (discussing

Hudgens v. NLRB, 424 U.S. 507 (1976), and Eastex, 437 U.S. at

571), we quoted the Supreme Court’s description of the two

lines in Lechmere:

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

9

nonemployee 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, 502 U.S. at 537 (quoting

Babcock, 351 U.S. at 109-10, 113) (citations omitted)).

Lechmere, we said, “reaffirmed Babcock’s central thesis that §

7 extends only derivative access rights to nonemployee union

organizers.” Id. at 1002-03.

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 Babcock was “between the union activities of

employees and nonemployees,” Lechmere, 502 U.S. at 537, not

between those of on- and off-site employees:

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

10

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 union organizers.” Id.

at 1004. On the other, the Board had failed to consider the

“heightened property concerns” -- involving “security, traffic

control, personnel, and like issues” -- that arise when off-site

rather than on-site employees seek access. Id. at 1005. Finally,

the Board had also “failed to explain why the scope of [the off-

site employees’] rights should be defined by the same Tri-

County balancing test used to delineate the scope of on-site

employee access rights.” Id. We warned that “[i]f, on remand,

the Board determines that § 7 indeed extends nonderivative

access rights to off-site employees,” it would have to “adopt a

balancing test that takes proper account of an employer’s

predictably heightened property concerns” when off-site

employees are involved. Id.

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 nonderivative 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

11

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.

III

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.” 251 F.3d at 1004. We

conclude that, taken together, Hillhaven and the remand decision

satisfactorily resolved the three deficiencies we identified in our

review of the Board’s initial ITT 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 nonderivative 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 nonderivative access right, for organizational

purposes, to their employer’s facilities.” ITT Remand Decision,

341 N.L.R.B. No. 118, at 3 (quoting Hillhaven, 336 N.L.R.B. at

648). And the Board not only explained that conclusion, it did

so reasonably.

12

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.”

336 N.L.R.B. at 648. “Clearly, then, these workers are different

in important respects from persons who themselves have no

employment relationship with the particular employer.” Id.

Moreover, “when offsite employees seek to organize similarly

situated employees at another employer facility, the employees

seek strength in numbers to increase the power of their union

and ultimately to improve their own working conditions.” ITT

Remand Decision, 341 N.L.R.B. No. 118, at 3. This reasonably

explains the Board’s conclusion that the right claimed by such

off-site employees is personal rather than derivative: employees

who seek to make common cause with similarly situated

employees of the same employer are seeking to advance their

own interests -- not just those of the employees they target, as is

the case for nonemployee organizers. Thus, the “core concerns

of Section 7, which protects the ‘right to self-organization,’

undeniably are implicated.” Hillhaven, 336 N.L.R.B. at 649.

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., 336

N.L.R.B. at 650 (“[T]he Section 7 organizational rights of

offsite employees entitle them to access to the outside,

nonworking areas of the employer’s property. . . .”), and others

apparently treating it as a prerequisite, see, e.g., id. at 648

13

(“When an offsite employee seeks to encourage the organization

of similarly situated employees . . . , the employee seeks to

further his own welfare.” (emphasis added)).

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-à-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.”

336 N.L.R.B. at 649. But it also reasonably noted that “even

onsite employees arguably are trespassers on the employer’s

14

property if they seek access while off duty, a time when they

have not been invited onto the property,” id. at 650, as ITT

counsel conceded at oral argument, see Oral Arg. Tape at 16:26-

18:33.2 “There is an inherent tension, then,” the Board

recognized, “between an employer’s property rights and the

Section 7 rights of its employees” -- a tension that cannot be

resolved merely by reference to the law of trespass. 336

N.L.R.B. at 650. Rather, as the Supreme Court said in Hudgens

v. NLRB, it is “the task of the Board . . . to resolve conflicts

between § 7 rights and private property rights, ‘and to seek a

proper accommodation between the two.’” 424 U.S. at 521

(quoting Central Hardware Co. v. NLRB, 407 U.S. 539, 543

2

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

ac tivities.” 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 T ORTS § 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 (noting that Ҥ 7 of the NLRA may, in

certain limited circumstances, restrict an employer’s right to exclude

[even] nonemployee union organizers from his property”); New York

New York, LLC v. NLRB, 313 F.3d 585, 589 (D.C. Cir. 2002) (noting

that it is employees’ section 7 rights that permit them to organize on

employer property, not the operation of trespass law).

15

(1972)). “What is ‘a proper accommodation’ in any situation

may largely depend upon the content and the context of the § 7

rights being asserted.” Id.

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, 336 N.L.R.B. at 649. Although “[o]n

one view, [off-site] employees are . . . ‘strangers’ to the

employer, . . . [o]f critical importance, on the other hand, is the

fact that an employment relationship exists between them and

the employer, which distinguishes offsite employees from the

ordinary trespasser, who truly is a stranger.” Id. “The existence

of an employment relationship,” the Board said, “means that the

employer has a lawful means of exercising control over the

offsite employee (even regarded as trespasser), independent of

its property rights.” Id. That ability to exercise control provides

a reasonable basis for the Board’s conclusion that permitting

access by off-site employees trenches less seriously on the

employer’s property interests than would permitting access by

nonemployees. As the Board explained: “Surely it is easier for

an employer to regulate the conduct of an employee -- as a legal

and a practical matter -- than it is for an employer to control a

complete stranger’s infringement on its property interests. The

employer, after all, controls the employee’s livelihood.” ITT

Remand Decision, 341 N.L.R.B. No. 118, at 4 (quoting

Hillhaven, 336 N.L.R.B. at 649).

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 offsite employees faces

precisely the same situation as it would when confronted by the

access claims of onsite employees.” Hillhaven, 336 N.L.R.B. at

16

649. The Board recognized that the “employee status of offsite

employees . . . may be more difficult to determine, at least

initially,” and that there “may be other, unique problems

involved, as well,” citing our statement in ITT Industries that the

“employer’s right to control the disputed premises likely

implicates security, traffic control, personnel, and like issues

that do not arise when only on-site employee access is

involved.” Id. at 649-50 (quoting ITT Industries, 251 F.3d at

1005). The NLRB thus reasonably concluded that, while access

by off-site employees raised fewer concerns than access by

nonemployees, “an employer may well have heightened private

property-right concerns when offsite (as opposed to onsite)

employees seek access to its property to exercise their Section

7 rights.” ITT Remand Decision, 341 N.L.R.B. No. 118, at 3

(quoting Hillhaven, 336 N.L.R.B. at 648).

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, 251 F.3d at 1005.

This time, however, the Board did take proper account. Like the

Tri-County test, the Hillhaven test provides that “[o]n 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.” Hillhaven, 336 N.L.R.B. at 650 (emphasis added).

But “[i]n weighing those reasons,” the Board promised, “we will

take into account an employer’s ‘predictably heightened

property concerns’ . . . when offsite, as opposed to onsite,

employees are involved.” Id.

ITT disputes the NLRB’s contention that the Hillhaven test

really is different from the Tri-County test applied to on-site

17

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, 336 N.L.R.B. at 648). In this way, the

Board said, “the test for determining the right to access for

offsite visiting employees differs, at least in practical effect,

from the Tri-County test for off-duty, onsite employees.” Id.

(quoting Hillhaven, 336 N.L.R.B. at 648). For example, under

Hillhaven the heightened problems that access by off-site

employees may pose for security and traffic control “might well

justify an employer’s restriction (or even prohibition) of such

access.” Id. at 3 n.28 (quoting Hillhaven, 336 N.L.R.B. at 650).

And greater difficulty in determining the employee status of

offsite employees might justify “requir[ing] apparent trespassers

to identify themselves . . . to determine whether the person

seeking access is, in fact, an offsite employee of the employer.”

Id. (quoting Hillhaven, 336 N.L.R.B. at 650).

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

fulfilled that commitment in the case now before us.

IV

In this Part, we consider ITT’s contention that even if the

Hillhaven test is proper, its application to the instant case is

18

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, 331 N.L.R.B. at 6; see also ITT Remand

Decision, 341 N.L.R.B. No. 118, at 1 (noting that the three

plants are within short commuting distance of one another and

that ITT periodically transferred employees from one plant to

another). Under these circumstances, the Board’s conclusion

that the employees were similarly situated, and therefore that the

off-site employees possessed nonderivative section 7 rights, was

reasonable. As the Board said, the “offsite employee’s personal

stake in organizing his counterparts at a different employer

facility is clearest where he is, or will be, part of a multifacility

bargaining unit that includes onsite employees.” Id. at 4

(quoting Hillhaven, 336 N.L.R.B. at 649).

3

See Lee Lumber & Bldg. Material Corp. v. NLRB, 310 F.3d 209,

216 (D.C. Cir. 2002) (stating that this court “‘review[s] the Board’s

factual conclusions’ only for ‘substantial evidence,’ and must ‘uphold

the Board’s application of law to facts unless arbitrary or otherwise

erroneous’” (quoting Harter Tomato Products Co. v. NLRB, 133 F.3d

934, 937 (D.C. Cir. 1998))).

19

ITT correctly points out that, in Hillhaven, the Board

declared that “a similar self-interest” can arise “even where the

unorganized employees may be in a different bargaining unit.”

Hillhaven, 336 N.L.R.B. at 649. But such a case is not before

us, and we need not decide it now. As there is no dispute in the

instant case that a single bargaining unit encompassing the three

groups of employees would be appropriate, we cannot dispute

the reasonableness of the Board’s conclusion that “the Section

7 rights at issue here are indeed substantial.” ITT Remand

Decision, 341 N.L.R.B. No. 118, at 4 (emphasis added).4

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 slashed, a stranger entered the property to fight with

an employee, and the estranged husband of an employee

telephoned to say he had a gun and was coming after his wife.

Id. at 2.

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

4

Cf. Speedrack Prods. Group, Ltd. v. NLRB, 114 F.3d 1276, 1278

(D.C. Cir. 1997) (“An employee is eligible to vote in a representation

elec tion if she shares ‘a community of interest’ with the other

employees in the unit. The Board examines various factors to

determine if a community of interest exists, such as the similarity of

wages, benefits, skills, duties, working conditions, and supervision of

the employee . . . .”).

20

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 “justif[ied] 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.

21

Second, the NLRB noted that the Oscoda 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 Hillhaven 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

impermissibly substituted its business judgment for that of the

company when, in the course of examining ITT’s security

concerns, the Board stated that it was “also significant that [ITT]

did not install security cameras on its property, did not employ

security guards to protect the premises, and did not request the

police to patrol the area.” Id. ITT maintains that this statement

reflects the Board’s own business judgment that it would have

been better to adopt those security measures, rather than the no-

access policy that ITT actually chose.

22

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 “look[ing]

out for one another” would take care of the problem.

ITT also contends that the availability of other means of

communicating with the 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, 344 F.3d at 541); see Babcock, 351

U.S. at 113-14. Having reasonably concluded that off-site

employees have section 7 rights not possessed by

nonemployees, see supra Part III, it was also reasonable for the

NLRB to decide not to apply the same test to off-site employees

that it applies to nonemployees.

23

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., 494 U.S. 775, 786 (1990).5 For that reason, a court must

accord a Board rule “considerable deference” and uphold it as

long as it is “rational and consistent” with the NLRA, “even if

we would have formulated a different rule had we sat on the

Board.” Id. at 786-87. ITT disparages this declaration of

judicial deference as a “tired mantra.” Pet’r Reply Br. at 2. But

while there is no question that it is oft-repeated,6 that hardly

renders it “tired.” To the contrary, constant repetition serves to

remind us of the line we must not cross if we are to keep judicial

review separate from the formulation of public policy.

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

5

“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, 494

U.S. at 786 (quoting Beth Israel Hospital v. NLRB, 437 U.S. 483, 500-

01 (1978) (quoting Republic Aviation, 324 U.S. at 798)).

6

See, e.g., Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S.

359, 364 (1998); Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781,

787-88 (1996); NLRB v. Town & Country Elec., Inc., 516 U.S. 85, 94

(1995); Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891 (1984); Regal

Cinemas, Inc. v. NLRB, 317 F.3d 300, 306-07 (D.C. Cir. 2003); Lee

Lumber, 310 F.3d at 216; Harter Tomato Prods., 133 F.3d at 937.

24

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.