Eastex, Inc. v. National Labor Relations Board

Me. Justice Rehnquist,

with whom The Chief Justice joins,

dissenting.

It is not necessary to determine the scope of the “mutual aid or protection” language of § 7 of the National Labor Rela *580 tions Act to conclude that Congress never intended to require the opening of private property to the sort of political advocacy involved in this case. Petitioner’s right as a property owner to prescribe the conditions under which strangers may enter its property is fully recognized under Texas law. “ ‘A licensee who goes beyond the rights and privileges granted by the license becomes a trespasser.’ ” Burton Construction & Shipbuilding Co. v. Broussard, 154 Tex. 50, 58 , 273 S. W. 2d 598, 603 (1954) (citation omitted). See also Brown v. Dellinger, 355 S. W. 2d 742 (Tex. Civ. App. 1962); 56 Tex. Jur. 2d, Trespass §4 (1964). Thus, the employees’ effort to distribute their leaflet in defiance of petitioner’s wishes would clearly be a trespass infringing upon petitioner’s property right. There is no indication that Texas takes so narrow a view of petitioner’s rights that it may fairly be said that its “only cognizable property right in this respect is in preventing employees- from bringing literature onto its property and distributing it there.” Ante, at 573. So far as appears, a Texas property owner may admit certain leaflets onto his property and exclude others, as it pleases him. The Court can only mean that the Board need not take cognizance of any greater property right because the Congress has clearly and constitutionally said so.

From its earliest cases construing the National Labor Relations Act the Court has recognized the weight of an employer’s property rights, rights which are explicitly protected from federal interference by the Fifth Amendment to the Constitution. The Court has not been quick to conclude in a given instance that Congress has authorized the displacement of those rights by the federally created rights of the employees. In NLRB v. Fansteel Metallurgical Corp., 306 U. S. 240 (1939), construing another section of the Act, this Court dealt with the Board’s efforts to compel the reinstatement of employees who had been discharged after violating their *581 employer’s property rights by engaging in a sitdown strike. Mr. Chief Justice Hughes wrote for the Court:

“We are unable to conclude that Congress intended to compel employers to retain persons in their employ regardless of their unlawful conduct, — to invest those who go on strike with an immunity from discharge for acts of trespass or violence against the employer’s property, which they would not have enjoyed had they remained at work. Apart from the question of the constitutional validity of an enactment of that sort, it is enough to say that such legislative intention should be found in some definite and unmistakable expression. We find no such expression in the cited provision.” Id., at 255 .

See also id., at 265 (Stone, J., concurring in part). An employer’s property rights must give way only where necessary to effectuate the central purposes of the Act: “to safeguard the rights of self-organization and collective bargaining, and thus by the promotion of industrial peace to remove obstructions to the free flow of commerce as defined in the Act.” Id., at 257 .

Those rights of self-organization were again recognized six years later in Republic Aviation Corp. v. NLRB, 324 U. S. 793 (1945). There, the Court held that Congress had authorized the Board to displace the property rights of employers where necessary to accommodate the rights of employees to distribute union organizational literature and to wear union insignia. In NLRB v. Babcock & Wilcox Co., 351 U. S. 105 (1956), the Court recognized that nonemployees could also invoke this right to solicit union membership, but it held that the Board’s authority to displace the employer’s property rights in such circumstances was extremely limited. 1 Later, *582 the Court in Central Hardware Co. v. NLRB, 407 U. S. 539 (1972), explained the limited nature of the intrusion upon property rights permitted by Babcock:

“The principle of Babcock is limited to this accommodation between organization rights and property rights. This principle requires a 'yielding’ of property rights only in the context of an organization campaign. Moreover, the allowed intrusion on property rights is limited to that necessary to facilitate the exercise of employees’ § 7 rights. After the requisite need for access to the employer’s property has been shown, the access is limited to (i) union organizers; (ii) prescribed nonworking areas of the employer’s premises; and (iii) the duration of organization activity. In short, the principle of accommodation announced in Babcock is limited to labor organization campaigns and the 'yielding’ of property rights it may require is both temporary and minimal.” 407 U. S., at 544-545 . 2

*583 The Court today cites no case in which it has ever held that anyone, whether an employee or a nonemployee, has a protected right to engage in anything other than organizational activity on an employer’s property. The simple question before us is whether Congress has authorized the Board to displace an employer’s right to prevent the distribution on his property of political material concerning matters over which he has no control. 3 In eschewing any analysis of this question, in deference to the supposed expertise of the Board, the Court permits a “ ‘yielding’ of property rights” which is certainly not “temporary”; and I cannot conclude that the deprivation of such a right of property can be dismissed as “minimal.” It may be that Congress has power under the Commerce Clause to require an employer to open his property to such political advocacy, but, if Congress intended to do so, “such a legislative intention should be found in some definite and unmistakable expression.” Fansteel, 306 U. S., at 255 . Finding no such expression in the Act, I would not permit the Board to balance away petitioner’s right to exclude political literature from its property.

I would reverse the judgment of the Court of Appeals.

The Court’s assertion to the contrary notwithstanding, both Babcock and Republic Aviation, like this case, involved a “trespass on the employer’s property,” ante, at 571, in that union members sought to over *582 ride the employer’s right to prescribe the conditions of entry to its property. It cannot accept the implications of the dictum in Hudgens v. NLRB, 424 U. S. 507, 521-522, n. 10 (1976), which may in turn be traced back to that portion of the Board’s opinion quoted in Republic Aviation, 324 U. S., at 803-804, n. 10 , that this constitutionally protected right may be disregarded where employees are involved simply by characterizing it as a “management interes[t].” The employer has a property right under Texas law to decide not only who shall come on his property but also the conditions which must be complied with to remain there. The fact that this right may be subordinated by various governmental enactments makes it no less a property right.

1 do not read the reference in Central Hardware to “§ 7 rights” as a suggestion that all rights protected under that section may be allowed to intrude upon an employer’s property rights. The rest of the paragraph clearly limits its application to organization rights, and the Court in a later case suggested that distinctions might be drawn between “lawful economic strike activity” and “organizational activity,” both of which are protected rights under § 7. Hudgens v. NLRB, supra, at 522. Earlier this Term, in Sears, Roebuck & Co. v. Carpenters, 436 U. S. 180 (1978), the Court *583 conceded that trespassory picketing might be protected in some circumstances, but went on to state: “Even on the assumption that picketing to enforce area standards is entitled to the same deference in the Babcock accommodation analysis as organizational solicitation, it would be unprotected in most instances.” Id,., at 206 (footnote omitted). No holding of this Court has ever found such a trespass protected.

The Court’s complaint that “almost every issue can be viewed by some as political,” ante, at 570 n. 20, contrasts markedly with its earlier assurance, in another context, that “common-sense” distinctions may be drawn between political speech and commercial speech. Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 455-456 (1978). In any case, there is little difficulty in determining whether the employer has the power to affect those matters of which his employees complain. Where he does not, there is no reason to require him to permit such advocacy on his property, even though such activity might arguably be protected under § 7 if committed elsewhere.