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Metropolitan Dist. Council of Philadelphia and Vicinity United Broth. of Carpenters and Joiners of America, AFL-CIO v. N.L.R.B.

October 25, 1995




On Appeal from a Final Decision and Order of the National Labor Relations Board (No. 4-CA-18791)

BEFORE: GREENBERG and LEWIS, Circuit Judges, and VANARTSDALEN, District Judge *fn*

GREENBERG, Circuit Judge.

Submitted October 12, 1995

(Filed: October 25, 1995)



The Metropolitan District Council of Philadelphia and Vicinity, United Brotherhood of Carpenters and Joiners of America, petitions this court for review of a Decision and Order of the National Labor Relations Board dismissing an unfair labor practice complaint against Leslie Homes, Inc. The Board found that Leslie Homes did not violate section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. 158(a)(1), when it denied petitioner's representatives access to its property to distribute "area standards" handbills to potential purchasers of condominiums which Leslie Homes was constructing. The Board had jurisdiction under 29 U.S.C. Section(s) 160(a), and we have jurisdiction under 29 U.S.C. Section(s) 160(f).

The facts are not in dispute and are as follows. Leslie Homes began constructing Crestwood, a 288 unit condominium project, on its property in Bristol, Pennsylvania, in 1988. At the outset of construction the petitioner represented the carpenters on the project. In December 1989, however, Leslie Homes started to employ nonunion carpenters at wage rates and with benefits below prevailing union standards. In response, the petitioner, on April 1, 1990, attempted to distribute handbills to prospective condominium purchasers at Crestwood. The handbills asserted that Leslie Homes was employing "foreign/immigrant workers" paid substantially less than prevailing, i.e., union wages and benefits, thereby "destroying" the fair wages and living standards of area tradesmen. To distribute the handbills, petitioner's representatives stood on the sidewalk and walkway in front of a model condominium. But Leslie Homes would not permit the distribution of the handbills on its property and, consequently, it directed the handbillers to leave. They refused to leave until the local police at Leslie Homes's request directed them to do so. Subsequently, they distributed the handbills on a public road abutting Leslie Homes's property.

These events led petitioner to file an unfair labor practice charge with the Board, which filing resulted in the Board's General Counsel issuing a complaint on September 27, 1990, contending that Leslie Homes violated section 8(a)(1) of the NLRA by calling the police to eject petitioner's handbillers. Inasmuch as the parties stipulated to the facts, they waived a hearing before an administrative law judge. Consequently, the Board transferred the proceeding directly to it. While the matter was pending before the Board, the Supreme Court decided Lechmere, Inc. v. NLRB, 502 U.S. 527, 112 S.Ct. 841 (1992), which involved issues similar to those here. Predicated on Lechmere, the General Counsel moved to dismiss the complaint. The Board, in a split decision on January 25, 1995, issued its Decision and Order dismissing the complaint. The petitioner then initiated the proceedings now before us.


The parties dispute the standard of review. The petitioner contends that the Board decided the matter on legal grounds by interpreting and applying Supreme Court precedent and it thus contends that in this case we "exercise plenary review of [a] question[ ] of law." Tubari Ltd. v. NLRB, 959 F.2d 451, 453 (3d Cir. 1993). It also cites NLRB v. Greensburg Coca-Cola Bottling Co., 40 F.3d 669, 673 (3d Cir. 1994), and Furniture Renters of America, Inc. v. NLRB, 36 F.3d 1240, 1248 (3d Cir. 1994), in support of this contention. On the other hand, the Board urges that our review is deferential both as to the Board's conclusions of law and its application of the law to the facts. It cites NLRB v. Local Union No. 103, 434 U.S. 335, 350, 98 S.Ct. 651, 660 (1978), and Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465 (1951), in support of this contention. We will not linger on the point, because even exercising plenary review we agree with the Board and thus will deny the petition.


As is often the situation in labor law, this case arises at the intersection of two claims. On the one hand, Leslie Homes, at common law and thus under Pennsylvania law, has the general right to decide who may come on to its property. On the other hand, under section 7 of the NLRA, 29 U.S.C. Section(s) 157, the right of employees "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" includes union activity intended to protect the area wage and benefit standards that a union has negotiated for its members. Giant Food Markets, Inc. v. NLRB, 633 F.2d 18, 23 (6th Cir. 1980). "Area standards" activity, such as that involved in this case, is intended to protect wage and benefit standards by exerting pressure on nonunion employers with a competitive advantage over union employers who pay higher wages. Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, 436 U.S. 180, 206 n.42, 98 S.Ct. 1745, 1762 n.42 (1978). Thus, in this case the conflict is obvious: petitioner sought to engage in activities sanctioned under the NLRA on property where Leslie Homes exercised its property rights to exclude petitioner's representatives.

The Supreme Court first balanced the property rights of an employer with its employees' rights to engage in concerted activity in Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982 (1945). There it held that generally an employer can be compelled to allow its employees to distribute literature on its property. However, in NLRB v. Babcock and Wilcox, 351 U.S. 105, 112, 76 S.Ct. 679, 684 (1956), the Court distinguished Republic Aviation and held that in general an employer cannot be compelled to allow non-employee organizers to distribute union literature on its property. Id. at 112, 76 S.Ct. at 684. ...

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