An employer acted unlawfully by prohibiting union representatives from distributing pro-union literature in the public right-of-way adjacent to its facility and by trying to remove the union representatives from the public right-of-way, ruled the Third Circuit. However, the appeals court granted the employer’s cross-application to review a finding by the NLRB that the employer acted unlawfully by threatening to summon police and then summoning the police when union representatives refused to leave from the public right-of-way. Although the employer was mistaken about its ownership of the shoulder of a road, that mistake should not be used to penalize it for contacting law enforcement to vindicate its own property rights, the court reasoned, concluding that substantial evidence did not support the Board’s finding that the employer’s conduct was motivated solely by a desire to remove the union representatives from the right-of-way (NLRB v. ImageFIRST Uniform Rental Service, Inc., December 18, 2018, Cowen, R.).
Distribution union literature on public right-of-way. The employer provides health care laundry services at its nonunion facility. The union filed unfair labor practice charges against the employer arising out of the efforts of its general manager to prevent four union representatives from distributing pro-union literature on the public right-of-way outside the facility. The public right-of-way included the shoulder running along the road. The employer’s property was separated from the shoulder by a concrete curb. The curb borders a strip of grass, which borders a small parking lot, all of which was owned by the employer. In addition, the employer’s property encompassed the driveway connecting the parking lot with the road.
An administrative law judge found that the employer failed to show that when it demanded that police remove the union representatives from the right-of-way, it possessed a property interest in the shoulder of the road allowing it to exclude them. The general manager was under the mistaken belief that the employer’s property included the shoulder of the road and that it could exercise control over the shoulder of the road. Thus, after the union representatives had moved to the shoulder of the road, the general manager had no authority to ask them to leave or to threaten to call the police, the ALJ found. It was not until the police explained to the general manager that the representatives were not trespassing that he acquiesced that the shoulder was a public right-of-way. Moreover, the ALJ observed that the union representatives’ incursions onto the employer’s property did not rise to the level of trespassing that would justify calling the police.
The Board affirmed the ALJ, finding that the employer violated Section 8(a)(1) of the NLRA by attempting to remove the representatives, and that the employer was not motivated by a reasonable concern to protect its own property interest.
Removal from shoulder of road was unlawful. On appeal, the employer did not dispute the NLRB’s finding that the general manager’s erroneous belief that the employer had a property interest in the shoulder of the road was unreasonable, and thus a violation of the NLRA. It also did not seek review of the Board’s conclusion that it violated the Act by seeking to have the union representatives removed from the shoulder of the road. Thus, the appeals court granted the Board’s application for enforcement of its ruling that the employer violated Section 8(a)(1) by prohibiting union representatives from distributing pro-union literature in the public right-of-way adjacent to its facility and by attempting to remove the union representatives from the public right-of-way.
Concern for property interests. However, the employer argued that the Board failed to consider undisputed facts found by the ALJ in its determination that the general manager’s call to police was not motivated by a reasonable concern for the employer’s property rights. Here, the Third Circuit concluded that substantial evidence did not support the NLRB finding that the employer’s threat to call the police and the employer’s call to the police were motivated solely by a desire to remove the union representatives from the public right-of-way. Rather, given the evidence in the record as well as the ALJ’s conclusions, no reasonable finder of fact could have failed to find that the employer’s conduct was motivated by a broader concern over its property interests. A reasonable fact-finder would also have to find that the employer’s concern was reasonable.
It is well established that there is no NLRA violation where an employer can show that its threat to call or its call to the police “is motivated by some reasonable concern, such as public safety or interference with legally protected interests.” According the Board, the evidence in the record demonstrated that the general manager called the police because he mistakenly believed that the employer could eject the union representatives from the shoulder—and not because they were on the company’s driveway or other parts of its property.
However, the appeals court noted that evidence showed that the general manager was clearly concerned about more than the shoulder. Rather, he testified that he witnessed the representatives continue to make forays onto the company’s driveway to leaflet vehicles even after they moved to the shoulder of the road. Moreover, a union field coordinator admitted that on occasions, the representatives may have entered the driveway. Further, the ALJ never specifically found that the general manager’s actions were motivated solely by a desire to remove the union representatives from the shoulder. Yet, the Board failed to address the evidence and factual findings establishing that the threat to call the police and the subsequent call itself were motivated by a broader concern about the company’s property interests.
“Reasonable” concern inquiry. Because the evidence showed that the employer was clearly motivated by more than a desire to have the union representatives removed or arrested because they engaged in protected union handbilling on the public shoulder of the highway adjacent to the employer’s private property, the court turned to the objective component of the “reasonable” concern inquiry. Even though the employer was wrong about the scope of its property rights over the shoulder, no reasonable finder of fact could have failed to find that its concern was reasonable because it still possessed the right to contact the police on account of the union representatives’ repeated and ongoing forays onto its private property. It was undisputed that the employer had a property interest in the driveway as well as the grassy area and the curb, allowing it to exclude the union representatives. The employer’s error regarding the shoulder should not be used to penalize it for contacting law enforcement to vindicate its own property rights. The mistake over its right to exclude from the shoulder “does not negate the fact of trespass” on private property.
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