CENTRAL HARDWARE COMPANY v. N.L.R.B., 468 F.2d 252 (8th Cir. 1972)

"The Court inBabcockstated the guiding principle for adjusting conflicts between § 7 rights and property rights:

`Organization rights are granted to workers by the same authority, the National Government, that preserves property rights. Accommodation between the two must be obtained with as little destruction of one as is consistent with the maintenance of the other. The employer may not affirmatively interfere with organization; the union may not always insist that the employer aid organization. But when the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels, the right to exclude from property has been required to yield to the extent needed to permit communication of information on the right to organize.'

The principle ofBabcockis 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 inBabcockis limited to labor organization campaigns, and the `yielding' of property rights it may require is both temporary and minimal."

"The Trial Examiner concluded that no reasonable means of communication with employees were available to the nonemployee Union organizers other than solicitation in Central's parking lots. The Board adopted this conclusion. Central vigorously contends that this conclusion is not supported by substantial evidence in the record as a whole. The Court of Appeals did not consider this contention, because it viewedLogan Valleyas controlling rather thanBabcock Wilcox.The determination whether on the record as a whole there is substantial evidence to support agency findings is a matter entrusted primarily to the Courts of Appeals. Universal Camera Corp. v. NLRB,340 U.S. 474,71 S.Ct. 456,95 L.Ed. 456(1951). Since the Court of Appeals has not yet considered this question in light of the principles of NLRB v. Babcock Wilcox,351 U.S. 105,76 S.Ct. 679,100 L.Ed. 975(1956), the judgment is vacated, and the case will be remanded to that court for such consideration."

"I conclude that there are no reasonable means available to nonemployee representatives of the Union to reach respondent's employees with its organizing message other than by having those representatives meet them on respondent's parking lots."

"The principal problem which this entailed, aside from the substantial difficulty of finding the homes of employees who lived in rural areas surrounding Indianapolis, was that the employees were absent from their homes more often than not when the Union's representative called. In this regard, Mercer, the Union's director of organization, testified that a union representative making a `home call . . . may have to go back on an average of five or six times in order to actually make contact with the person' sought.

"Mercer's testimony was based on his general organizing experience. It does not appear from the evidence that he visited the home of any employee of respondent. However, Mark Kapetanakis, one of the Union's organizers, did. The results which he obtained supported Mercer's conclusion. Of 50 to 60 employees at whose homes Kapetanakis called, he succeeded in talking to from 7 to 10; the rest were out when visited by him."

"We do not believe it wise or proper to adopt a `big city rule' and a different `smalltown rule' in applying Babcock and Wilcox, or to attempt to determine how big a city must be to justify the proposed differing application. Concededly, it may be more convenient and less expensive for the Union to use the Respondent's property for the purpose of organizing the employees here involved. That was also true under the facts of Babcock and Wilcox. But the test established there wasnotone of relativeconvenience,but rather whether the `location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them. . . .' The facts here do not, in our view, justify such a conclusion, and we are unwilling to make that conclusion solely upon the basis of the plant's location in a metropolitan area." (Emphasis added.)

"With respect to the first aspect of theBabcocktest, there is no substantial evidence in the record showing that the employees were inaccessible or that reasonable attempts to communicate with them were ineffective. The Union had a list of employees 80 per cent complete and had for a period of time an inside organizer; and it otherwise had unrestricted access to contact the employees at their residences. The Union could invite the employees to any union or organizational meeting and had open many of the conventional means of communication, mail, telephone, personal contacts, etc. The burden was not on the Company to show that conventional means of communication and access were open, but the contrary burden rests with the General Counsel. . . ."439 F.2d 1321,1330.