First Healthcare Corporation, d/b/a HILLHAVEN BAKERSFIELD, d/b/a HILLHAVEN HIGHLAND… v. National Labor Relations Board

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0337P (6th Cir.)
File Name: 03a0337p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
FIRST HEALTHCARE
CORPORATION, d/b/a
HILLHAVEN BAKERSFIELD,
d/b/a HILLHAVEN HIGHLAND
HOUSE, d/b/a HEALTHCARE
CORPORATION IN THE STATE
OF CALIFORNIA,
Petitioner/
Cross-Respondent,
v.
NATIONAL LABOR RELATIONS
BOARD,
Respondent/
Cross-Petitioner,
SERVICE EMPLOYEES
INTERNATIONAL UNION,
LOCAL 399,
Intervenor.
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Nos. 01-2478/2673
On Petition for Review and Cross-Application
for Enforcement of an Order
from the National Labor Relations Board.
2 First Healthcare Corp. v. NLRB Nos. 01-2478/2673
*The Honorable Patrick J. Duggan, United States District Judge for
the Eastern District of Michigan, sitting by designation.
Nos. 31-CA-20973; 31-CA-21091; 31-CA-21551.
Argued: April 29, 2003
Decided and Filed: September 19, 2003
Before: CLAY and GIBBONS, Circuit Judges; DUGGAN,
District Judge.*
_________________
COUNSEL
ARGUED: John V. Nordlund, Fairfax, California, for
Petitioner. Jill Griffin, NATIONAL LABOR RELATIONS
BOARD, OFFICE OF THE GENERAL COUNSEL,
Washington, D.C., for Respondent. Andrew L. Strom, SEIU
LOCAL 32BJ, LEGAL DEPARTMENT, New York, New
York, for Intervenor. ON BRIEF: John V. Nordlund,
Fairfax, California, Leslie M. Mitchell, LAW OFFICE OF
LESLIE M. MITCHELL, Sacramento, California, for
Petitioner. Jill Griffin, Aileen A. Armstrong, Frederick C.
Havard, NATIONAL LABOR RELATIONS BOARD,
OFFICE OF THE GENERAL COUNSEL, Washington, D.C.,
for Respondent. Andrew L. Strom, SEIU LOCAL 32BJ,
LEGAL DEPARTMENT, New York, New York, Craig
Becker, Chicago, Illlinois, for Intervenor.
CLAY, J., delivered the opinion of the court, in which
DUGGAN, D. J., joined. GIBBONS, J. (pp. 39-46), delivered
a separate dissenting opinion.

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Nos. 01-2478/2673 First Healthcare Corp. v. NLRB 3
1W e emphasize that we review the legal basis upon which the Board
applied its factual findings de novo. Thus, the dissent’s contention that
we failed to apply a de novo standard to the Board ’s legal co nclusions is
simply wrong.
_________________
OPINION
_________________
CLAY, Circuit Judge. In Case No. 01-2478, Petitioner,
First Healthcare Corporation, d/b/a Healthcare Corporation in
the State of California, d/b/a Hillhaven Highland House, d/b/a
Hillhaven Bakersfield, petitions this Court for review of the
September 30, 2001, decision and order from Respondent, the
National Labor Relations Board (“NLRB” or “the Board”),
finding that Petitioner violated section 8(a)(1) of the National
Labor Relations Act (“the Act”), 29 U.S.C. § 141 et seq., by
denying access to its property to persons who were employed
at another facility owned by Petitioner, and by maintaining a
policy of denying off-duty employees access to the outside
non-working areas of the facilities where they were
employed. In Case No. 01-2673, the Board seeks this Court’s
enforcement of the September 30, 2001, decision and order.
Because there is substantial evidence to support the Board’s
findings of fact, and because there are no errors of law1 in the
decision, we DENY Petitioner’s request for review of the
Board’s September 30, 2001, decision and order in Case No.
01-2478, and GRANT the Board’s application for
enforcement of the order in Case No. 01-2673.
BACKGROUND
Procedural History
This case originated with unfair labor practice charges filed
against Petitioner by the Service Employees International
Union and two of its affiliates, Local 399 and Local 22
(collectively “the Union”), between January 3 and
4 First Healthcare Corp. v. NLRB Nos. 01-2478/2673
September 22, 1995. (NLRB Cases 31-/CA-20973, 31CA-
21091, and 31CA-21551.) The Board subsequently
consolidated the cases. The parties submitted the
consolidated case directly to the Board for a decision based
on a stipulation of facts on December 4, 1995. Thereafter, on
September 30, 1996, the Board ruled that it had improvidently
accepted the stipulation, and remanded the case for a trial to
determine the object of the trespassory conduct at issue.
On June 8-11, 1998, a trial was held before Administrative
Law Judge (“ALJ”) Steven Charno, and on July 21, 1998, the
ALJ issued a decision from the bench finding that Petitioner
had violated section 8(a)(1) of the Act. All parties filed
timely exceptions to the ALJ’s decision with the Board. On
September 30, 2001, the Board issued its decision which is
now before the Court on petition for review by Petitioner and
on application for enforcement by the NLRB. See First
Healthcare Corp., 336 N.L.R.B. No. 62, 168 L.R.R.M.
(BNA) 1368, 2001 WL 1685280 (Sept. 30, 2001). Pursuant
to this Court’s March 10, 2003, order, the Union’s motion to
participate in oral argument has been granted.
Facts
Petitioner operates nursing homes at various locations in
California. The Union represents employees at some of
Petitioner’s nursing homes, while some of Petitioner’s homes
operate as nonunion facilities. Since January of 1990,
successive employee handbooks for Petitioner’s nonunion
service staff in California have included a solicitation and
distribution rule with two provisions. The first provision
states: “When you are off-duty, don’t return to the facility
unless you are picking up your paycheck or are making an
authorized visit.” (J.A. at 848.) An “authorized visit” was
defined by Petitioner as a return to the facility for “a
work/job-related reason.” (J.A. at 686.) The second
provision states: “[N]on-employees are not allowed to solicit
or distribute material while on facility property.” (J.A. at 679
n.5.) Petitioner has interpreted this latter provision to apply

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Nos. 01-2478/2673 First Healthcare Corp. v. NLRB 5
to employees who solicit and distribute at facilities other than
the facility to which the employees are assigned to work
(a/k/a “offsite employees”).
On September 17, 1994, Petitioner’s employee Alfredo
Chavez met with three non-employee union organizers at
Petitioner’s Highland House facility just prior to the 3:00 p.m.
shift change. Chavez was employed by Petitioner as a janitor
at Petitioner’s Alta Vista facility. Chavez walked to the
parking lot outside the employees’ entrance at the back of the
Highland House facility with flyers that were printed in both
Spanish and English. The flyers, which were captioned
“Let’s Get Together,” pointed out the benefits of union
membership, solicited the recipients to join the Union, and
contained a postage prepaid card which could be returned for
additional “information about joining the Service Employees
International Union.” (J.A. at 687, 818-19.) Chavez
identified himself as one of Petitioner’s employees, and spoke
with approximately four employees about the value of the
Union, before he was joined by union organizer Blanca
Correa.
Correa and Chavez had spoken to four more employees
when they were approached by Highland House
administrator, Carol Bowman-Jones. Both Correa and
Highland House employee Bill Harvey identified Chavez as
one of Petitioner’s employees. Nonetheless, Bowman-Jones
ordered Chavez to leave the premises, threatening to call the
police if he refused to leave. Chavez complied with
Bowman-Jones’ order to leave the premises.
About four months later, at approximately January 26,
1995, a group of non-employee union organizers and offsite
employees assembled at the Highland House facility for the
purpose of handing out union literature which 1) disputed
Petitioner’s prior claim that the union made no promises “it
could not keep,” and 2) invited Highland House employees to
join the Union. (J.A. at 687.) It is uncontroverted that
approximately forty-five minutes later, Jack Quiroz, the
6 First Healthcare Corp. v. NLRB Nos. 01-2478/2673
maintenance supervisor at Highland House, was observed
shutting the facility’s back gate which required that the gate
thereafter be manually opened to allow cars to enter or exit
the facility through that gate. The main entrance and exit to
the facility were at the front of the building.
At approximately 2:00 p.m. on July 12, 1995, Jenny
Davenport, an employee of Petitioner’s Alta Vista facility,
along with union organizers Gary Guthman and Karla
Zombro, spoke with employees at Petitioner’s Bakersfield
facility (also referred to as the California Care Center facility)
about joining the Union. Davenport was wearing her badge
issued by Petitioner which bore Davenport’s name and
Petitioner’s logo. Davenport took some of the union literature
and went to an outdoor break area next to the parking lot on
Petitioner’s premises, and began talking with a Bakersfield
employee about the benefits of unionization. Davenport also
carried leaflets that described the value of unionization and
urged employees to make inquiries on “‘how to get involved
in fighting for union rights for your facility.’” (J.A. at 813.)
Shortly thereafter, Maria Favereaux, business manager at
Petitioner’s Bakersfield facility, came out of the facility and
approached Davenport. Davenport informed Favereaux that
she was employed by Petitioner and asserted a legal right as
one of Petitioner’s employees to be on the premises.
Favereaux went inside the facility and telephoned Petitioner’s
legal counsel. Favereaux then emerged outside with
environmental services manager Tim Haub, and Favereaux
instructed Davenport to leave the Bakersfield premises. As
Haub and Favereaux escorted Davenport off of the premises,
they were approached by Guthman, who questioned the
decision to deny Davenport access to the outside non-working
areas. Haub responded that employees could not distribute
materials on Petitioner’s property “unless they had the
approval of Management.” (J.A. at 60, 687.)
Based on the foregoing facts, the Board agreed with the
ALJ and found that Petitioner had violated section 8(a)(1) of

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Nos. 01-2478/2673 First Healthcare Corp. v. NLRB 7
the Act by enforcing against off-site employees its solicitation
and distribution policy prohibiting non-employees from any
solicitation and distribution at Petitioner’s facilities. The
Board also affirmed the ALJ’s finding that Petitioner had
violated section 8(a)(1) of the Act by maintaining, at least
until July 12, 1995, a rule that prohibited off-duty employees
from returning to the non-work areas of the facilities where
they worked to engage in organizational activity unless
“authorized” by Petitioner.
The Board ordered Petitioner to cease and desist from
engaging in these unfair labor practices, particularly with
respect to Petitioner’s enforcing its no-solicitation rule in a
manner so as to deny its off-site employees access to parking
lots and other non-work areas for the purpose of engaging in
union solicitation and/or distribution. The Board also
directed Petitioner to rescind the rule contained in its
employee handbook stating that employees who are off-duty
may not “return to the facility unless [they] are picking up
[their] paycheck or making an authorized visit” and to notify
employees of this recision. (J.A. at 685.) Finally, the Board
ordered Petitioner to post a remedial notice at all of its
nonunion facilities in California.
DISCUSSION
I. STANDARD OF REVIEW
Under the Act, the scope of this Court’s review of the
Board’s findings is limited. That is, “the findings of the
Board with respect to questions of fact if supported by
substantial evidence on the record considered as a whole shall
be conclusive.” 29 U.S.C. § 160(e). “Evidence is considered
substantial if it is adequate, in a reasonable mind, to uphold
the decision.” Turnbull Cone Baking Co. v. NLRB, 778 F.2d
292, 295 (6th Cir. 1985) (per curiam). Although this Court
“should consider the evidence contrary to the Board’s
conclusions,” it “may not conduct a de novo review of the
record.” Id. (citing Union Carbide Corp. v. NLRB, 714 F.2d
8 First Healthcare Corp. v. NLRB Nos. 01-2478/2673
657, 600 (6th Cir. 1983)). “When there is conflict in the
testimony, ‘it is the Board’s function to resolve questions of
fact and credibility,’ and thus this court ordinarily will not
disturb credibility evaluations by an ALJ who observed the
witnesses’ demeanor.” Id. (quoting NLRB v. Baja’s Place,
733 F.2d 416, 421 (6th Cir. 1984)).
In addition, “[t]he Board’s application of the law to
particular facts is also reviewed under the substantial
evidence standard . . . .” Id. However, “[i]f the Board errs in
determining the proper legal standard, the appellate court may
refuse enforcement on the grounds that the order has ‘no
reasonable basis in law.’” Id. (quoting Ford Motor Co. v.
NLRB, 441 U.S. 488, 497 (1979)).
II. SUBSTANTIAL EVIDENCE SUPPORTS THE
BOARD’S FINDING THAT PETITIONER
VIOLATED SECTION 8(a)(1) OF THE ACT BY
PROHIBITING ITS EMPLOYEES FROM
E N G A G I N G I N O R G A N I Z A T I O N A L
S O L I C I T AT I O N A N D D I S T R I B U T I O N
ACTIVITIES IN OUTSIDE NONWORKING
AREAS AT FACILITIES OTHER THAN THE
FACILITY WHERE THEY WORK
A. Legal Standards Regarding Solicitation and/or
Distribution Rights Under Section 7 of the Act
Section 7 of the Act guarantees employees “the right to
self-organization, to form, join, or assist labor organizations.”
29 U.S.C. § 157. Section 8(a)(1) makes it an “unfair labor
practice” for any employer “to interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed in
[Section 7].” 29 U.S.C. § 158(a)(1).
The organizational solicitation and/or distribution rights
under Section 7 of off-duty offsite employees—that is,
employees of a single company who engage in organizational
activity at a company facility other than that to which they

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Nos. 01-2478/2673 First Healthcare Corp. v. NLRB 9
have been assigned to work—is an issue upon which the
NLRB has spoken but not one upon which the Supreme Court
has spoken. In addition, while the District of Columbia
Circuit not long ago had the issue of what, if any, Section 7
rights off-site employees enjoy, the D.C. Circuit declined to
speak affirmatively on the matter, but instead remanded the
matter back to the Board for further determination. In other
words, an issue of first impression is before this Court upon
which there is little said directly on point in the relevant
jurisprudence. As a result, we shall paint the legal landscape
surrounding the matter with a broad brush so as to allow for
proper consideration of the issue.
To begin, it has been black-letter law for nearly fifty years
that the Board cannot order employers to grant non-employee
union organizers access to company property absent a
showing that onsite employees are otherwise inaccessible
through reasonable efforts. NLRB v. Babock & Wilcox Co.,
351 U.S. 105, 112 (1956); see also Lechmere, Inc. v. NLRB,
502 U.S. 527, 534 (1992).
In Tri-County Medical Center, Inc. v. District 1199, 222
N.L.R.B. 1089 (1976), the Board considered the issue of
whether it could prevent employers from denying off-duty
employees access to outside non-working areas of the facility
at which they were employed for purposes of exercising
Section 7 rights. The Board found that it had authority under
Section 8(a)(1) of the Act to prevent employers from denying
off-duty onsite employees access to parking lots, gates, and
other outside non-working areas for purposes of exercising
Section 7 rights, unless the employer had “justified business
reasons” for doing so. Id. This Court affirmed the Board’s
application of the Tri-County test to invalidate a no-access
policy applied to off-duty onsite employees in NLRB v. Ohio
Masonic Home, 892 F.2d 449, 453 (6th Cir. 1989).
In Southern California Gas Co., 321 N.L.R.B. 551 (1996),
and Postal Service, 318 N.L.R.B. 466 (1995), the Board
applied the rule of Tri-County in finding that it had authority
10 First Healthcare Corp. v. NLRB Nos. 01-2478/2673
under Section 8(a)(1) to prevent an employer from denying
visiting “off-site” employees access to outside non-working
areas of the employer’s property for the purpose of exercising
Section 7 rights. The Board followed Southern California
Gas Co. and Postal Service in deciding ITT Industries, Inc.,
331 N.L.R.B. 7 (2000), thus preventing the employer in that
case from denying off-duty offsite employees who were
seeking to exercise their organizational rights access to
outside non-working areas.
The employer in ITT Industries, Inc., ITT Automotive
(“ITT”), petitioned the District of Columbia Court of Appeals
for review, and the Board cross-petitioned for enforcement of
the Board’s decision. See ITT Indus., Inc. v. NLRB, 251 F.3d
995, 996 (D.C. Cir. 2001). The D.C. Circuit denied ITT’s
petition for review of an issue not relevant here, but vacated
the Board’s determination that ITT committed an unfair labor
practice by applying its no-access policy to offsite employees
seeking to distribute pro-union handbills and solicit signatures
for the union organizing petition, and remanded the matter to
the Board for further proceedings consistent with the court’s
opinion. Id. at 1006-007. In doing so, the court began by
noting that under Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 842-43 (1984), the
NLRB is entitled to judicial deference when it interprets an
ambiguous provision of a statute that it administers, and that
because Section 7 does not itself speak of access rights, much
less access rights of offsite employees, such statutory silence
would counsel Chevron deference unless courts have settled
on the statute’s clear meaning. ITT Indus., Inc., 251 F.3d at
1000 (citing Lechmere, 502 U.S. at 536-37).
With this principle in mind, the D.C. Circuit then surveyed
the landscape of relevant Supreme Court decisions so as to
determine whether Chevron deference was in order—i.e.,
whether the judicial pronouncements have settled on Section
7's meaning. Id. The court began by examining the Court’s
decision in Babcock, 351 U.S. at 112, wherein it was held that
the access rights of non-employees are derivative of the

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Nos. 01-2478/2673 First Healthcare Corp. v. NLRB 11
access rights of onsite employees; that is, non-employees
enjoy no independent, free-standing Section 7 right of access.
251 F.3d at 1000.
The D.C. Circuit then looked to the Court’s decision in
Hudgens v. NLRB, 424 U.S. 507 (1976), rendered some
twenty years after Babcock was handed down. See 251 F.3d
at 1001. In Hudgens the Court ultimately remanded the
matter back to the Board to decide the Section 7 question in
the first instance; however, in doing so, the Court
acknowledged that the facts in Hudgens differed from those
of Babcock because the alleged trespass onto the employer’s
property “was carried on by [the employer’s] employees
(albeit not employees of its shopping center store), not by
outsiders.” 424 U.S. at 522. The Hudgens Court also
distinguished Babcock from Republic Aviation Corp. v.
NLRB, 324 U.S. 793 (1945), an earlier decision wherein the
Court affirmed a Board ruling that an employer may not
prohibit distribution of organizational materials by employees
in non-working areas during non-work hours absent a
showing that the ban was necessary to maintain plant
discipline or production. Hudgens, 424 U.S. at 521-22 n.10.
The Hudgens Court noted that “[a] wholly different balance
was struck when the organizational activity was carried on by
employees already rightfully on the employer’s property,
since the employer’s management interests rather than his
property interests were there involved.” Id.
Next, the D.C. Circuit recognized that in Eastex, Inc. v.
NLRB, 437 U.S. 556 (1978), the Court explained the
underlying concerns driving the different outcomes in
Babcock and Republic Aviation. ITT Indus., Inc., 251 F.3d at
1001. Specifically, the Eastex Court had observed that
[i]n Babcock & Wilcox, . . . nonemployees sought to
enter an employer’s property to distribute union
organizational literature. The Board applied the rule of
Republic Aviation in this situation, but the court held that
there is a distinction “of substance” between “rules of
12 First Healthcare Corp. v. NLRB Nos. 01-2478/2673
law applicable to employees and those applicable to
nonemployees.” The difference was that the
nonemployees in Babcock & Wilcox sought to trespass
on the employer’s property, whereas the employees in
Republic Aviation did not. Striking a balance between
§ 7 organizational rights and an employer’s right to keep
strangers from entering on its property, the Court held
that the employer in Babcock & Wilcox was entitled to
prevent “nonemployee distribution of union literature [on
its property] if reasonable efforts by the union through
other available channels of communication will enable it
to reach the employees with its message.”
Eastex, 437 U.S. at 571 (quoting Babcock, 351 U.S. at 112-
13) (citations omitted).
Finally, the D.C. Circuit recognized that in Lechmere, Inc.
v. NLRB, 502 U.S. 527, 532 (1992), the Supreme Court
sharpened the distinction between employee/non-employee
Section 7 rights. 251 F.3d at 1002. In Lechmere, the Court
stated that “by its plain terms, . . . the NLRA confers rights
only on employees, not on unions or their nonemployee
organizers . . . .” Lechmere, 502 U.S. at 532 (emphasis is
original).
With this background into the controlling jurisprudence in
mind, the D.C. Circuit found that neither Lechmere nor “the
Court’s cases leading up to it” answered the question of
whether off-duty offsite employees enjoyed nonderivative
Section 7 organizational rights, or whether the offsite
employees’ organizational rights were merely derivative. 251
F.3d at 1003. As a result, the D.C. Circuit concluded that
“[b]ecause the [Supreme] Court’s cases do not bespeak a clear
answer, and because the statute is silent on the point, we must
defer to the Board’s interpretation if reasonable.” Id.
(emphasis in original).
The D.C. Circuit went on to address the reasonableness of
the Board’s decision in ITT Industries, and found that the

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Nos. 01-2478/2673 First Healthcare Corp. v. NLRB 13
Board’s decision was conclusory and lacked sufficient
consideration or analysis of the interests involved. Id. at
1004. Specifically, the D.C. Circuit opined in relevant part
regarding the deficiencies it found with the Board’s decision:
First, the Board failed even to acknowledge that the
question of off-site employee access rights was an open
one, i.e., that, in Chevron terms, § 7 and the Court’s
cases are silent on the issue. Rather, the Board decided
sub silento that § 7 guarantees all off-site employees,
whether members of the same bargaining unit or not,
some measure of free-standing, nonderivative rights. See
Board Decision at 4 (“[E]mployees of the employer who
work at one plant are still considered employees of the
employer if they handbill at another of the employer’s
plants.”). Indeed, by applying the Tri-County balancing
test, the Board decided without analysis that trespassing
off-site employees possess access rights equivalent to
those enjoyed by on-site employee invitees. Because it
is by no means obvious that § 7 extends nonderivative
access rights to off-site employees, particularly given the
considerations set forth in the Court’s access cases, the
Board was obliged to engage in considered analysis and
explain its chosen interpretation.
* * *
Second, even were we here to find reasonable the
Board’s decision to read into § 7 some measure of free-
standing, non-derivative access rights for off-site
employees, the Board nevertheless failed to explain why
the scope of such rights should be defined by the same
Tri-County balancing test used to delineate the scope of
on-site employee access rights. Lechmere makes clear
that, even as to on-site employees, the Board must
balance the conflicting interests of employees to receive
information on self-organization on the company’s
property from fellow employees during nonwork time
14 First Healthcare Corp. v. NLRB Nos. 01-2478/2673
with the employer’s right to control the use of his
property. See Lechmere, 502 U.S. at 534.
ITT Indus., Inc., 251 F.3d at 1004-005.
B. The Board’s Decision
At the time the instant case was decided by the Board, it
had the benefit of the D.C. Circuit’s criticisms of ITT
Industries, Inc., although the D.C. Circuit’s mandate had yet
to issue and the Board had not received additional briefing by
the parties on the subject of the remand. The Board found
that it was “guided by” the D.C. Circuit’s decision
nonetheless, and thus concluded as follows regarding the
instant case:
(1) under 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) that an employer may
well have heightened property-right concerns when
offsite (as opposed to onsite) employees seek access to
its property to exercise their Section 7 rights; but (3) that,
on balance, the Section 7 organizational rights of offsite
employees entitle them to access to the outside, non-
working areas of the employer’s property, except where
justified by business reasons, which may involve
considerations not applicable to access by off-duty, on-
site employees. To this extent, 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, on-site employees.
NLRB v. First Healthcare Corp., 2001 WL 1685280, at *3.
In reaching this conclusion, the Board took into consideration
the main two criticisms expressed by the D.C. Circuit in ITT
Industries, Inc.: 1) inadequate analysis as to the Section 7
access rights of off-duty, offsite employees seeking access for
the purpose of engaging in organizational activity, 2) and

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Nos. 01-2478/2673 First Healthcare Corp. v. NLRB 15
inadequate analysis of the private property rights of
employers as to such individuals when balancing the interests
involved. Id.
1. Section 7 Rights of Offsite Employees
As to the Section 7 rights of offsite employees, the Board
began by agreeing with the D.C. Circuit’s observation that
“the Supreme Court’s decisions ‘certainly do not stand for the
proposition that all trespassers, whether they be non-
employee union organizers or offsite employees, possess only
derivative [Section] 7 access rights.’” First Healthcare
Corp., 2001 WL 1685280, at *4 (quoting ITT Indus., Inc., 251
F.3d at 1002) (emphasis in ITT Indus.)). Rather, the Board
opined, under the Supreme Court’s decisions, “offsite
employees are fundamentally different from non-employee
union organizers, although the situation of offsite employees
is not identical to that of onsite employee invitees.” Id.
(comparing Lechmere, Inc. v. NLRB, 502 U.S. 527
(addressing access rights of non-employee union organizers)
with Republic Aviation v. NLRB, 324 U.S. 793 (1945)
(addressing protected activity by onsite employees) and
Eastex, Inc. v. NLRB, 437 U.S. 556 (1978) (same)).
The Board went on to observe that “[o]ffsite 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.” Id. The Board further observed that the
offsite workers are significantly different in several important
respects from those persons who themselves have no
employment relationship with the particular employer. Id.
For example, the Board observed that as compared to non-
employees, the Section 7 rights of offsite employees “involve
not just the shared interests of statutory employees as
members of the working class, or as employees working in
the same sector, industry, or community, but as employees
working for the same employer.” Id. The Board found this
16 First Healthcare Corp. v. NLRB Nos. 01-2478/2673
significant because “[n]othing in either the Act or the
Supreme Court’s decisions establishes that the Section 7
rights of employees of a particular employer, as against that
employer, are somehow derivative of other employees’ rights,
when they are exercised at a location other than the customary
site of employment.” Id. (emphasis in original).
The Board also observed that offsite employees were
significantly different from onsite employees in that when an
offsite employee seeks to encourage union organization at the
company for which he works (the parent company of the
individual locations), he seeks to do so for his own welfare
even though he is engaging in the organizational activity at a
company location other than that to which he is assigned. Id.
The Board found this distinction significant because in
attempting to organize the unorganized, there is strength in
numbers to increase the power of the union and ultimately to
improve the working conditions for the onsite and offsite
worker alike. Id. (citing Food & Commercial Workers Locals
957, 7, & 1036 (Meijer, Inc.), 329 NLRB 730, 734 (1999)
(“[T]here is abundant evidence that, in collective bargaining,
unions are able to obtain higher wages for the employees they
represent . . . when the employees of employers in the same
competitive market are unionized.”)) That is, when “off-site
employees seek to organize fellow employees, they act within
the immediate employee-employer relationship.” Id.
(emphasis in original.) Thus, the Board concluded, “[t]he
core concerns of Section 7, which protects the ‘right to self-
organization,’ undeniably are implicated.” Id.
In short, the Board found that the interests shared among
onsite as well as offsite employees such as “wages, benefits,
and other work-place issues [are those] that may be addressed
by concerted action.” Id. at 5. The Board recognized the
D.C. Circuit’s observation in ITT Industries that the
“‘interests of employees located on a single employer site do
not always coincide with the collective interests of employees
located on several different sites.’” Id. (citing 251 F.3d at
1005). However, the Board found that

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Nos. 01-2478/2673 First Healthcare Corp. v. NLRB 17
[t]he fact remains that employees often will share
significant interests, even if their interests are not
identical. In a particular case, the fact that offsite
employees are seeking to organize their fellow
employees suggests that they believe there is a basis to
make common cause. There is some merit in taking into
account employees’ judgments of their own interests.
Id. Thus, the Board concluded that for all of the above-cited
reasons, “the Section 7 rights of offsite employees are non-
derivative and substantial.” Id.
2. Employer’s Private Property Interests
In order to satisfy the D.C. Circuit’s second concern
expressed with the Board’s decision in ITT Industries—that
under Lechmere, even as to onsite employees, the Board must
balance the conflicting interests of employees to receive
information on self-organization on the company’s property
from fellow employees during non-work time with the
employer’s right to control the use of its property—the Board
next addressed Petitioner’s private property interests. Id. at
*5. In this regard, the Board began by noting that the D.C.
Circuit found that offsite employees may be regarded as
trespassers by the employer and this must be considered in
weighing the access rights of offsite employees. Id. “[O]f
course,” the Board continued, “[b]roadly viewed, any
employee engaged in activity to which the employer objects
on its property, might be deemed a trespasser, not an invitee:
the employer arguably is free to define the terms of its
invitation to employees.” Id. Thus, the Board observed, there
is “an inherent tension” between “an employer’s private
property rights and the Section 7 rights of its employees.” Id.
(citing Republic Aviation Corp., 324 U.S. at 802 n.8
(“Inconvenience or even some dislocation of property rights,
may be necessary in order to safeguard the right to collective
bargaining.”)).
18 First Healthcare Corp. v. NLRB Nos. 01-2478/2673
The Board went on to note that, as the Supreme Court had
made clear, it is the “‘task of the Board’” to “‘resolve
conflicts between [Section] 7 rights and private property
rights, and to seek a proper accommodation between the
two.’” Id. (quoting Hudgens, 424 U.S. at 521)). The Board
further noted that with respect to off-duty, onsite employees,
the Board’s accommodation of the two competing rights has
been widely accepted by the courts via the Tri-County rule;
that is, the Board has authority under Section 8(a)(1) of the
Act to prevent employers from denying off-duty employees
seeking to assert their organizational rights under Section 7
access to outside non-working areas of the employer’s
property unless the employer presents valid business
justifications for the restriction. Id. The situation of off-duty
offsite employees “implicates some distinct considerations,”
the Board continued. Id. at *6. “On one view, such
employees are (as [Petitioner] here describes them)
‘strangers’ to the employer, in contrast to off-duty, onsite
employees. . . . Of 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. Because
of the existence of this employment relationship, the Board
observed, “the employer has a lawful means of exercising
control over the offsite employee (even regarded as a
trespasser), independent of its property rights.” Id. That is,
“[s]urely 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.” Id.
The Board acknowledged that an employer, in protecting its
interests and preserving its property rights, does not face
precisely the same scenario in dealing with the access rights
of off-duty, onsite employees as opposed to off-duty, offsite
employees; however, the Board opined, in the context of the
latter case, “an employer’s property interests, as well as its
related management interests, may be given due recognition

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Nos. 01-2478/2673 First Healthcare Corp. v. NLRB 19
without granting it the unqualified right to exclude offsite
employees pursuing organizational activity.” Id. The result
of an employer possessing such an unqualified right against
off-duty offsite employees, the Board proclaimed, would
effectively be to foreclose the exercise of Section 7 rights, and
such a result runs counter to the Supreme Court’s admonition
that the “‘[a]ccommodation between employees’ [Section] 7
rights and employers’ property rights . . . must be obtained
with as little destruction of one as is consistent with the
maintenance of the other.’” Id. (quoting Hudgens, 424 U.S.
at 521 (internal quotation marks and citation omitted)).
Having found that off-duty offsite employees enjoy
Section 7 organizational rights of access that are freestanding
and nonderivative, and having recognized that employers
possess private property concerns regarding the access of off-
duty offsite employees seeking to exercise Section 7
organizational rights, the Board then went on to balance these
competing interests.
3. Balancing Section 7 Rights Against Private
Property Interests
In balancing the respective rights, the Board concluded that
“the Section 7 organizational rights of offsite employees
entitle them to the outside, non-working areas of the
employer’s property, except where justified by business
reasons.” Id. at *6. The Board went on to explain that “[i]n
weighing those reasons, we will take into account an
employer’s ‘predictably heightened property concerns’ (in the
words of the ITT Industries court) when offsite, as opposed to
onsite, employees are involved.” Id. For example, the Board
noted that
[i]n some cases, an influx of offsite employees might
raise security problems, traffic control problems, or other
difficulties that might well justify an employer’s
restriction (or even prohibition) of such access.
Appropriate measures might also be justified, for
20 First Healthcare Corp. v. NLRB Nos. 01-2478/2673
example, to require apparent trespassers to identify
themselves and thus to determine whether the person
seeking access is, in fact, an offsite employee of the
employer.
Id. at 7. The Board cautioned, however, “that an employer
must demonstrate why its security needs or related business
justifications warrant restrictions on access by offsite visiting
employees. We will review an employer’s proffered
justification carefully, on a case-by-case basis.” Id.
In applying this balance to the facts of the instant case, the
Board first found that Chavez and Davenport, as “offsite
employee visitors” to Petitioner’s Highland facility and its
Bakersfield facility, respectively, sought access to the
facilities to promote the Union and the benefits that it offered.
Id. The Board then found that in exercising their Section 7
rights to organize at facilities other than those to which they
were assigned to work, Chavez and Davenport did so for the
purpose of “strengthening their own Union and ultimately to
better their own working conditions.” Id. Thus, the Board
concluded, “these employees [Chavez and Devenport] had a
freestanding, nonderivative right of access under the Act.” Id.
The Board also found that to the extent that Chavez and
Davenport entered onto Petitioner’s parking lot or outside
break area against Petitioner’s rules, they trespassed onto the
property (i.e., they were not invitees); however, where in each
instance a single visiting offsite employee entered an outside
area of the facility, the Board concluded that the interference
with Petitioner’s property interests “was not substantial.” Id.
“Critically,” the Board explained, it examined Petitioner’s
business justifications for its rule against allowing the offsite
employees access rights. Id. In doing so, the Board noted
that Petitioner’s primary reason for prohibiting offsite
organizing employees access rights was to provide for the
“‘welfare, peace and tranquility’” of its nursing home
residents. Id. The Board found that the offsite employees did
not enter the nursing homes where they would be most likely

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Nos. 01-2478/2673 First Healthcare Corp. v. NLRB 21
to come in direct contact with patients. The Board also found
that Petitioner’s witness, Dr. Stone, a geriatric specialist,
admitted that a new face on the premises might as likely
stimulate as disturb one of the residents. Id. Finally, the
Board observed that Petitioner failed to show how a visiting
employee organizer might disturb the nursing home residents
any more than a visiting delivery person or a visitor coming
to see a resident. Id.
Another business justification proffered by Petitioner was
that given its many facilities and employees, it would be
extremely difficult and burdensome to keep track of all its
employees. The Board was unpersuaded by this argument as
applied to the facts of this case inasmuch as in each instance
a single offsite employee sought access at one of Petitioner’s
facilities, and Petitioner, in disallowing access, did not
contend that it was unable to determine the employment
status of the offsite employee. Id.
The final justification offered by Petitioner for its no access
rule was the Union’s “dignity campaign.” Id. at *8.
Specifically, according to Petitioner, the ALJ prevented it
from introducing evidence at the hearing for the purpose of
establishing that the Union and its supporters had previously
engaged in violent and disruptive actions. But the Board
noted that its rule forbidding access to offsite employees was
not tailored to address violent and disruptive acts; rather, the
Petitioner would prohibit all access by offsite visiting
employees. “Indeed,” the Board proclaimed, “employees
Chavez and Davenport acted appropriately and with decorum
in attempting to engage in organizational activity. Thus, we
agree with the [ALJ] that the [Petitioner] could not establish
its business justification defense by reference to alleged union
activity occurring at other places and at other times.” Id.
Having found that the balance of rights tipped in favor of
the offsite employees under the facts of this case, the Board
concluded that Petitioner had violated “Section 8(a)(1) by
maintaining a provision of its solicitation and distribution
22 First Healthcare Corp. v. NLRB Nos. 01-2478/2673
policy which it enforced to prohibit the employees of one of
[Petitioner’s] facilities from gaining access to the nonworking
outside areas at any other facility for the purpose of union
organizing and enforcing that provision.” Id. (footnote
omitted).
In a footnote to the Board’s decision, the Board agreed with
the ALJ that “at least until July 12, 1995, [Petitioner]
maintained a rule for its nonunion service staff in California
which stated that ‘When you are off duty, don’t return to the
facility unless you are picking up your paychecks or are
making an authorized visit.” Id. at n.10. The Board also
agreed with the ALJ that this provision unlawfully prohibited
off-duty employees from returning to the nonwork areas of
their own facility unless “authorized,” and therefore Petitioner
had violated Section 8(a)(1) in this regard as well. Id.
4. The Board’s Remedy for Petitioner’s Violations
To remedy the violations found by the Board, it was
ordered that Petitioner post cease and desist notices at all of
its nonunion facilities in California. The ALJ had
recommended that Petitioner be required to post cease and
desist notices at the three facilities directly involved in the
proceeding; however, the Board ordered a broader remedy.
C. Analysis
1. Section 7 Organizational Rights of Offsite
Employees
The value of an employee’s right to organize in a collective
effort for union protection is well steeped in the law and
jurisprudence. As the Supreme Court recognized in Sears,
Roebuck & Co. v. San Diego County District Council of
Carpenters, 436 U.S. 180, 189 (1978) (footnote omitted):
The enactment of the NLRA in 1935 marked a
fundamental change in the Nation’s labor policies.

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Nos. 01-2478/2673 First Healthcare Corp. v. NLRB 23
Congress expressly recognized that collective
organization of segments of the labor force into
bargaining units capable of exercising economic power
comparable to that possessed by employers may produce
benefits for the entire economy in the form of higher
wages, job security, and improved working conditions.
Congress decided that in the long run those benefits
would outweigh the occasional costs of industrial strife
associated with the organization of unions and the
negotiation and enforcement of collective-bargaining
agreements. The earlier notion that union activity was a
species of ‘conspiracy’ and that strikes and picketing
were examples of unreasonable restraints of trade was
replaced by an unequivocal national declaration of policy
establishing the legitimacy of labor unionization and
encouraging the practice of collective bargaining.
Today the Court is faced with determining the scope of the
organizational access rights of a certain type of employee—an
employee of the parent company, but not one of the facility at
which the employee seeks access, known as an “offsite
employee.”
Petitioner, the employer in this case, likens offsite
employees to non-employees (or strangers) and argues that
the scope of their rights should be limited to that of the rights
of non-employees as set forth in Babcock. That is to say, as
a rule, an employer cannot be compelled to allow distribution
of union literature by non-employee organizers on his
property, but where “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 employer’s property rights may be “required to yield to
the extent needed to permit communication of information on
the right to organize.” Babcock, 351 U.S. at 112. Stated
differently, Petitioner argues that to the extent that the offsite
employees have organizational access rights, the rights are
purely derivative of the onsite employees, and Petitioner
cannot be ordered to allow the offsite employees to trespass
24 First Healthcare Corp. v. NLRB Nos. 01-2478/2673
onto its property absent a showing that the onsite employees
have no other reasonable method to learn of their rights to
organize.
Respondent, the NLRB, likens offsite employees to off-
duty onsite employees, and argues that the scope of their
rights should be that as set forth in Tri-County. That is to say,
an employer cannot deny off-duty onsite employees access to
outside non-working areas of the facility for purposes of
exercising organizational rights unless the employer has
“justified business reasons” for doing so. Tri-County, 222
N.L.R.B. 1089. Stated differently, the NLRB argues that
offsite employees enjoy organizational rights that are
nonderivative, such that Petitioner cannot lawfully deny
offsite employees access to its property without “justified
business reasons” for doing so.
The employee/non-employee distinction for purposes of
determining organizational access rights is significant because
“[b]y its plain terms, [] the NLRA confers rights only on
employees, not on unions or their nonemployee organizers.”
Lechmere, 502 U.S. at 532 (emphasis in Lechmere). Indeed,
in commenting on its ruling in Babcock, the Supreme Court
opined that in Babcock it
explained that the Board had erred by failing to make the
critical distinction between the organizing activities of
employees (to whom § 7 guarantees the right of self-
organization) and nonemployees (to whom § 7 applies
only derivatively). Thus, while “[n]o restriction may be
placed on the employees’ right to discuss self-
organization among themselves, unless the employer can
demonstrate that a restriction is necessary to maintain
production or discipline,” “no such obligation is owed to
nonemployee organizers.”
Lechmere, 502 U.S. at 846 (quoting Babcock, 351, U.S. at
113) (emphasis added, citations omitted).

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Nos. 01-2478/2673 First Healthcare Corp. v. NLRB 25
In seeking to strike the proper balance of rights in Hudgens,
424 U.S. at 522, the Court distinguished Babcock based on
the fact that “the § 7 activity [in Hudgens] was carried on by
[the employer’s] employees (albeit not employees of its
shopping center store), not by outsiders [or nonemployees].”
Furthermore, in Hudgens, the Court noted that in Republic
Aviation Corp. v. NLRB, 324 U.S. 793 (1945), a wholly
different balance was struck between the employees and
employers than was struck in Babcock because “the
organizational activity [in Republic Aviation] was carried on
by employees already rightfully on the employer’s property,
since the employer’s management interests rather than his
property interests were there involved.” Hudgens, 424 U.S.
at 522 n.10. The Hudgens Court found this difference to be
“‘one of substance.’” Id. (quoting Babcock, 351 U.S. at 113).
Against this backdrop, the Board’s finding that offsite
employees enjoy Section 7 organizational rights of access that
are non-derivative was reasonable under the law. See
Chevron, 467 U.S. at 842-43; cf. Turnbull Cone Baking Co.,
778 F.2d at 295 (“If the Board errs in determining the proper
legal standard, the appellate court may refuse enforcement on
the grounds that the order has ‘no reasonable basis in law.’”).
To conclude otherwise would do violence to the plain
language of the Act, see 29 U.S.C. § 157, and run counter to
decisions from the Court which make clear distinctions in the
scope of an individual’s § 7 organizational access rights based
upon an individual’s status as an employee or a non-
employee. See, e.g., Lechmere, 502 U.S. at 532.
Furthermore, in reaching its conclusion, the Board properly
considered the D.C. Circuit’s concerns expressed in ITT
Industries, 251 F.3d at 1004—that the Board failed to engage
in any meaningful analysis and explain its interpretation of
the Act. As noted, in an attempt to satisfy the criticisms of
the D.C. Circuit in ITT Industries regarding the issue before
this Court, the Board took account of the Act and the
Supreme Court’s pronouncements in reaching its decision that
offsite employees enjoy non-derivative organizational rights.
26 First Healthcare Corp. v. NLRB Nos. 01-2478/2673
First Healthcare Corp., 2001 WL 1685280, at *4 (“Nothing
in either the Act or the Supreme Court’s decisions establishes
that Section 7 rights of the employees of a particular
employer, as against that employer, are somehow derivative
of other employees’ rights, when they are exercised at a
location other than the customary site of employment.”)
(emphasis in original). The Board also engaged in a
meaningful analysis of why offsite employees are more akin
to onsite-employees for purposes of Section 7, noting in part
that offsite and onsite employees share the same common
concerns as to a specific employer, not only as to employment
in general for purposes of garnering union support, but also
on matters relating to such things as wages, benefits, and
other workplace issues. As the Board observed, the fact that
offsite employees seek to organize their fellow employees at
a different location suggests that they believe that there a
basis to make a common cause.
Petitioner argues that the Board’s decision runs counter to
Supreme Court precedent that stranger employees (offsite
employees) are trespassers and therefore have no independent
right of access to Petitioner’s facilities where they are not
otherwise actually employed. In this regard, Petitioner relies
heavily upon Babcock and Lechmere, and Petitioner would be
correct in its argument if it could demonstrate that the Board’s
conclusion that offsite employees are more akin to non-
employees than onsite employees is unreasonable. Instead,
Petitioner presupposes that offsite employees (or “stranger
employees” in Petitioner’s words) should be considered non-
employee trespassers, and simply reiterates the D.C. Circuit’s
criticisms in ITT Industries without taking into account the
Board’s attempts to satisfy the D.C. Circuit’s concerns. Such
arguments woefully miss the mark under this Court’s review
inasmuch as the Court is to give deference to the Board’s
findings if reasonable.
Likewise, we are not persuaded by Petitioner’s argument
that the Board’s decision is erroneous because it goes beyond
the holding of its prior decisions, finding that stranger

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Nos. 01-2478/2673 First Healthcare Corp. v. NLRB 27
employees had a right of access onto their employer’s
property only when the stranger employees shared a
community of interests with the onsite employees. In this
regard, Petitioner relies in part upon United States Postal
Service, 318 NLRB 466 (1995), wherein the Board found that
offsite employees had a right of access to the employer’s
property for organizational purposes, noting that the offsite
employees
enjoy[ed] the same benefits and working conditions
regardless of the facility at which they work. For
example, vacation benefits accrue in the same manner
and rate regardless of an employee’s assigned facility.
Years of employment are counted toward an employee’s
pension from the day the employee is hired to the day he
or she retires, regardless of which facility he or she is
assigned. In addition, an employee who is involuntarily
transferred from one postal facility to another maintains
his or her seniority regardless of the change of facility.
Id. at 467.
Here, contrary to Petitioner’s claims, the Board did in fact
recognize the common interests shared by offsite and onsite
employees, in part, when it noted that “[w]hen an offsite
employee seeks to encourage the organization of similarly
situated employees of another employer facility, the employee
seeks to further his own welfare. In attempting to organize
the unorganized, employees seek strength in numbers to
increase power of their union and ultimately to improve their
own working conditions.” First Healthcare Corp., 2001 WL
1685280, at *4. The Board further found in this regard that
“[p]recisely because they work for the same employer, even
at different workplaces, employees will often have common
interests and concerns related to wages, benefits, and other
workplace issues that may be addressed by concerted action.”
Id. at *5.
28 First Healthcare Corp. v. NLRB Nos. 01-2478/2673
Petitioner also relies upon a case decided by the Fifth
Circuit in 1960, NLRB v. Great Atlantic & Pacific Tea Co.,
277 F.2d 759 (5th Cir. 1960), wherein the court found against
the Board and held that an employer may forbid union
solicitation by employees in stores other than stores in which
the soliciting employees worked, when the solicitation was
occurring inside the employer’s facility. Id. at 763. As the
NLRB argues, the distinction regarding inside-versus-outside
access by offsite employees is significant and clearly
distinguishes Great Atlantic & Pacific from the matter at
hand, particularly when this case was decided long before Tri-
County and much of the Supreme Court’s later jurisprudence.
Thus, we conclude that the Board’s interpretation of the Act
as providing offsite employees nonderivative and substantial
Section 7 organizational rights was reasonable and should be
given deference.
2. Employer’s Private Property Concerns
We are not persuaded by Petitioner’s argument that the
Board failed to consider Petitioner’s private property rights in
deciding the scope of Section 7 rights of offsite employees.
In this regard, Petitioner argues that evidence of prior acts
would have revealed that the offsite employees were not
seeking access to Petitioner’s property for the purpose of
organizing the onsite employees, but rather for the purpose of
pressuring Petitioner. Thus, according to Petitioner, this
evidence was relevant to show the true motivation behind the
offsite employees’ acts and Petitioner’s need to exclude them.
As argued by the NLRB, evidence was introduced at the
hearing showing that the offsite employees were on
Petitioner’s property for the purpose of distributing
organizational materials. The record supports the NLRB’s
claim where the leaflets distributed by the offsite employees
in question carried a clear organizational message and
solicited employees to call or mail in cards to find out more

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Nos. 01-2478/2673 First Healthcare Corp. v. NLRB 29
information about the Union. Thus, the Board’s finding as to
the relevancy of this evidence was not unreasonable.
In addition, the Board recognized that as to offsite
employees, an employer may have “heightened property-right
concerns” when offsite (as opposed to onsite) employees seek
access to property to exercise their Section 7 rights; however,
with this recognition in mind, the Board was not persuaded
that Petitioner’s concerns, or alleged “justified business
reasons,” outweighed the offsite employees’ access rights in
this case.
3. Balancing the Offsite Employees’ Section 7
Rights Against the Employer’s Property
Concerns
The Board crafted the following test along the lines of Tri-
County for determining whether, on a case-by-case basis, the
Section 7 organization rights of offsite employees should bow
to the property concerns of the employer:
(1) under Section 7 of the Act, offsite employees (in
contrast to nonemployee union organizers) have a
nonderivative access right, or organizational purposes, to
their employer’s facilities; (2) . . . an employer may well
have heightened 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, non-working areas
of the employer’s property, except where justified by
business reasons, which may involve considerations not
applicable to access by off-duty, on-site employees. To
this extent, 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, on-site
employees.
First Healthcare Corp., 2001 WL 1685280, at *3.
30 First Healthcare Corp. v. NLRB Nos. 01-2478/2673
Under the facts of this case, the Board’s decision that the
balance of rights tips in favor of the offsite employees was
supported by substantial evidence. Petitioner failed to
support its claim that it was necessary to deny the offsite
employees access in order to preserve the “welfare, peace and
tranquility” of its nursing home residents. Indeed, as found
by the Board, the offsite employees did not enter the inside of
Petitioner’s facilities, nor have the offsite employees ever
sought access to the inside of the facilities where they would
most likely come in contact with or be observed by a resident.
Moreover, as the Board also found, even if the residents were
to come in contact with an offsite employee, evidence was
admitted that a new face on the premises may just as likely
stimulate as disturb one of the residents. Finally, Petitioner
failed to show that if an offsite employee did have contact
with a resident, the offsite employee might be more likely to
disturb a resident than, say, a delivery man. Although
Petitioner’s interest in maintaining the “welfare, peace and
tranquility” of its residents is a noble interest, Petitioner has
failed to demonstrate why this interest is a justifiable one in
prohibiting the offsite employees from having access to its
facilities under the facts of this case.
Similarly, Petitioner failed to proffer evidence to support its
alleged business reason for denying offsite employees
access—that it would be extremely difficult and burdensome
to keep track of all of its employees. In fact, the record
indicates that issue of offsite employee identification was not
a problem here. When offsite employee Davenport was
barred from engaging in organizational activity, he was
wearing her employee identification badge, and when Chavez
was barred from engaging in organizational activity, she was
identified by an onsite employee as one of Petitioner’s offsite
employees. As found by the Board, Petitioner did not
contend that it was unable to identify the offsite employees in
this case. Thus, the Board’s conclusion that this reason
bowed to the offsite employees’ rights was supported by
substantial evidence and reasonable.

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Nos. 01-2478/2673 First Healthcare Corp. v. NLRB 31
Moreover, the Board’s order expressly provides Petitioner
with a means of denying access if it is faced with an
inordinate number of offsite employees seeking access to a
facility. Specifically, the Board expressly stated that
[i]n some cases, an influx of offsite employees might
raise security problems, traffic control problems, or other
difficulties that might well justify an employer’s
restriction (or even prohibition) of such access.
Appropriate measures might also be justified, for
example, to require apparent trespassers to identify
themselves and thus to determine whether the person
seeking access is, in fact, an offsite employee of the
employer.
Id. at *7. Thus, if Petitioner is faced with a security concern
by not being able to identify offsite employees in an orderly
or reasonable fashion, the Board has taken account of such a
situation and may well consider the employer’s denial of
access in such a situation to be justified. As the Board
indicated, it would decide such situations on a “case-by-case
basis” thus illustrating that Petitioner in this case, or any other
similarly situated employer, would not be without recourse if
it were faced with security concerns, traffic problems, or other
difficulties in allowing offsite employees access to its
facilities.
As to Petitioner’s claim that its no access rule was
necessary due to the Union’s dignity campaign, substantial
evidence supports the Board’s conclusion that this alleged
reason fails in light of the record. Indeed, the record indicates
that Chavez and Davenport acted appropriately, and nothing
in Petitioner’s rule indicates that it was designed to deny
access to violent or disruptive offsite employees. As found
by the Board, Petitioner’s sweeping no access rule was not
tailored to justify the result. Thus, substantial evidence
supports the Board’s determination in this regard as well.
32 First Healthcare Corp. v. NLRB Nos. 01-2478/2673
Finally, Petitioner’s argument that in striking the balance,
the Board was required to consider whether the onsite
employees had a reasonable way to acquire information about
the union on their own, is misplaced inasmuch as such an
inquiry is made only when nonemployees are on an
employer’s property. See Babcock, 351 U.S. at 112.
D. Summary
The Board’s decision has a reasonable basis in the law, and
substantial evidence on the whole supports the Board’s
conclusion that Petitioner violated Section 8(a)(1) by denying
offsite employees seeking to exercise their Section 7
organizational rights access to its facilities. Turnbull Cone
Baking Co., 778 F.2d at 295.
III. SUBSTANTIAL EVIDENCE SUPPORTS THE
BOARD’S FINDING THAT PETITIONER VIOLATED
SECTION 8(a)(1) OF THE ACT BY MAINTAINING OR
ENFORCING A RULE THAT PROHIBITS ITS OFF-
DUTY EMPLOYEES FROM SOLICITING IN THE
OUTSIDE NONWORK AREAS OF THE FACILITY
WHERE THEY WORK.
A. Background Into Basis for the Violation
In addition to finding that Petitioner violated Section
8(a)(1) of the Act by denying access to offsite employees, the
Board also found that at least until July 12, 1995, Petitioner
violated Section 8(a)(1) by maintaining a rule that prohibited
off-duty employees from soliciting in the exterior non-work
areas of the facility at which they were employed. The rule
to which this violation applied was included in Petitioner’s
employee handbook under the heading “Solicitation and
Distribution Policy” and stated as follows: “When you are off
duty, don’t return to the facility unless you are picking up
your paychecks or are making an authorized visit.” First
Healthcare Corp., at *8 n.10 (hereinafter termed “the no
access rule” or “the no access policy”). The term “authorized

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Nos. 01-2478/2673 First Healthcare Corp. v. NLRB 33
visit” was defined by Petitioner’s labor counsel as a return to
the facility for a “work/job-related reason.” (J.A. at 686.)
Petitioner seeks review of the Board’s decision in this
regard claiming that the no access rule issue was not properly
before the Board for procedural reasons. Petitioner also
argues that because the no access rule had been disposed of
several years earlier and was not in effect in 1995, the Board’s
findings regarding the no access rule were not supported by
substantial evidence.
This case was originally submitted to the Board in
December of 1995 on a stipulated record. The stipulated facts
related exclusively to the prior issue dealing with the access
rights of offsite employees. The Board decided that the
stipulation had been improvidently accepted, and remanded
the matter for a hearing before the ALJ. At the hearing,
Petitioner argued that the no access rule was no longer at
issue, but the NLRB argued otherwise, noting that the motion
to transfer the proceedings included the allegations in the
amended complaint which included allegations that the no
access rule violated the Act. The NLRB continued by arguing
that Petitioner could point to nothing in the record to indicate
that the no access rule charges were dropped. The ALJ found
it significant that there was nothing in the record to indicate
that the access rule charges had been dropped or settled. The
ALJ went on to find that
General Counsel [the NLRB] has noted accurately that
the remand order of September 30, 1996, returns the case
to the Regional Director for quote, appropriate action,
closed quote. And that is [sic] would be possible for the
Board to return the proceeding with instructions to
confine action to the hearing on the portion of the
evidence not then before the Board, specifically the
nature of the solicitation and distribution activities
alleged in the Complaint. Accordingly, I have to find
that the Board did not restrict the remand solely to the
taking of evidence on the nature of the allegedly
34 First Healthcare Corp. v. NLRB Nos. 01-2478/2673
protected activities. That fact in conjunction with the
fact that there is no explicit agreement to forebear
prosecution if any of the so called extraneous 8-A-1's and
given the detail and competence of legal representation
enjoyed by Respondent [now Petitioner] throughout the
proceeding, I can not [sic] find that there was an
agreement to abandon the so called extraneous 8-A-1's
[the no access rule violation]. Accordingly, the Motion
to Dismiss paragraphs nine (9) through (14) of the
Complaint is denied as well.
(J.A. at 27-28.) The Board agreed with the ALJ that the no
access rule issue was properly at issue at the hearing.
B. Issue on Appeal
On appeal, Petitioner makes the same arguments as it did
before the ALJ regarding the propriety of the no access rule
being at issue. Petitioner claims that because the no access
rule issue was not included in the stipulated facts, it was
understood by the parties that they were “effectively
disposing of that issue” and it should not have been
considered. Petitioner also claims that it was denied due
process when the ALJ considered the no access rule because
Petitioner believed that the no access rule had been disposed
of and therefore did not have reasonable notice or an
opportunity to prepare a defense. Petitioner contends that
while the case was pending, the company was sold, its
regional office closed, and documents related to the no access
rule issue were discarded or misplaced. Thus, according to
Petitioner, it could not prepare its defense.
We are not persuaded by Petitioner’s claims. The record
does not support Petitioner’s due process argument where the
record contains copies of Petitioner’s handbooks with the no
access rule at issue dating back to 1990. In addition, the
record indicates that on February 1, 1995, in a letter to the
NLRB’s regional attorney, Petitioner’s counsel provided the
NLRB with a copy of the solicitation policy setting forth the

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Nos. 01-2478/2673 First Healthcare Corp. v. NLRB 35
no access rule at issue. Thus, aside from general allegations
that it was unable to prepare a defense, Petitioner provides
nothing in particular that prevented it from defending the no
access rule allegations, and in fact the record demonstrates
that Petitioner provided the NLRB with information regarding
this issue.
Petitioner next argues that contrary to the Board’s finding,
that “at least until July 12, 1995,” Petitioner unlawfully
maintained the no access rule, Petitioner’s no access rule was
never in effect in 1995. In support of its argument Petitioner
notes that at the hearing before the ALJ, Petitioner placed into
evidence an employee handbook, purportedly in effect in
1995, which did not contain the no access rule at issue.
Petitioner claims that the ALJ erroneously failed to consider
this handbook, and instead relied upon a June 1, 1995
memorandum from Petitioner to the heads of its non-union
California facilities which provided that “Employees are not
to return to their own facilities for reasons other than those
contained in the handbook.” (J.A. at 858.) However,
Petitioner continues, the ALJ failed to read the next paragraph
of the internal memorandum which states that “Your own
employees may be permitted to return to the private property
perimeter of their own facilities (including parking lots), even
if their purpose is to organize.” (J.A. at 858.) Petitioner
contends that the sentence relied upon by the ALJ was in
reference to the internal portion of Petitioner’s facilities, and
not the outside perimeter as the next paragraph explained.
Petitioner notes that the policy of denying off-duty employees
access to the inside of the facility is not unlawful under the
Act, and thus the ALJ erred in relying on the internal
memorandum as evidence that Petitioner maintained an
unlawful no access policy until at least July 12, 1995.
The NLRB argues that while it is true that the ALJ relied
upon the statement that said “Employees are not to return to
their own facilities for reasons other than those contained in
the handbook.[,]” the ALJ found this significant because there
was nothing in the record to indicate that the 1995 handbooks
36 First Healthcare Corp. v. NLRB Nos. 01-2478/2673
had been distributed, and thus concluded that the reference
was to earlier handbooks containing the unlawful no access
rule. The NLRB thus concludes that the ALJ did not err in
this regard. In addition, the NLRB contends that the 1995
handbook and the ALJ’s reliance on the memorandum aside,
substantial evidence on the record supports the Board’s
finding.
Specifically, the NLRB contends that the unrebutted
testimony of union representative Gary Guthman indicated
that during an exchange at Petitioner’s Bakersfield facility on
July 12, 1995, employees were not allowed to distribute
leaflets in non-work areas outside the facility during non-
work hours unless they had the approval of management. The
NLRB also contends that in addition to Guthman’s testimony,
the manager at the Bakersfield facility, Maria Favereaux,
testified that Petitioner’s no access rule in 1995 was to allow
employees on the premises only while they were working.
The NLRB notes that although Petitioner’s counsel attempted
to impeach Favereaux as to her understanding of the no
access rule in effect in 1995, the ALJ was correct in noting
that even if he credited Petitioner’s impeachment of
Favereaux, this did nothing to negate the fact that Petitioner
enforced the no access rule at least until July 12, 1995.
Although the no access policy was removed from the 1995
employee handbooks and the internal memorandum does state
that off-duty employees should be allowed to return to the
perimeter of the facility even for the purpose of organizing,
the fact remains that Guthman’s testimony regarding
Petitioner’s unlawful acts on July 12, 1995 was unrebutted.
Petitioner failed to come forward with evidence to
demonstrate that up until July 12, 1995, other off-duty
employees were allowed access to the facility. Accordingly,
where Petitioner does not dispute that prior to the 1995
employee handbook, its handbooks contained an unlawful no
access rule regarding access by off-duty employees to the
outside of its facilities, and where Petitioner failed to come

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Nos. 01-2478/2673 First Healthcare Corp. v. NLRB 37
forward with evidence to rebut Guthman’s testimony,
substantial evidence supported the Board’s finding.
C. Summary
Substantial evidence on the record supported the Board’s
finding that at least until July 12, 1995, Petitioner maintained
a rule for its non-union service staff in California which
prevented the off-duty access to the outside areas of the
facility in violation of Section 8(a)(1).
IV. THE BOARD ACTED WITHIN ITS BROAD
REMEDIAL DISCRETION BY ORDERING
PETITIONER TO POST REMEDIAL NOTICES AT
EACH OF ITS NONUNION FACILITIES IN
CALIFORNIA.
Upon finding that a violation of the Act has occurred, the
Board’s power to fashion a remedy is a broad discretionary
one, subject to limited judicial review. Fibreboard Paper
Prods. Corp. v. NLRB, 379 U.S. 203, 215-16 (1964). Thus,
the Board’s remedial orders will not be disturbed unless it can
be shown that the order is a patent attempt to achieve ends
other than those which can fairly be said to effectuate the
policies of the Act. Id. (citation and internal quotation marks
omitted).
Statewide cease and desist postings are proper if the unfair
labor practices in which the employer was found to have been
engaging were part of a company-wide policy, or if it is
shown that employees at other facilities were actually aware
of them. Consol. Edison Co. of N.Y., 323 N.L.R.B. 910, 911-
12 (1997). In this case, the Board did not limit the cease and
desist posting to the three facilities involved in this matter, as
recommended by the ALJ. Rather, the Board ordered that the
cease and desist postings be made at all of Petitioner’s
California facilities. The Board reasoned that based on the
record, it was satisfied that Petitioner maintained unlawful
rules of denying access to off-duty offsite and off-duty onsite
38 First Healthcare Corp. v. NLRB Nos. 01-2478/2673
employees at its facilities, and that posting at all of
Petitioner’s facilities in California was thus required.
Petitioner argues that there was no evidence that any off-
duty employee was asked to leave any of Petitioner’s
premises; thus, no state-wide posting was needed.
Petitioner’s argument has no merit. In its decision, the Board
expressly stated that it was requiring the cease and desist
orders to be posted state-wide based on both of Petitioner’s
unlawful rules. It is true that the violations in question were
limited to three of Petitioner’s facilities; however, because the
violations included offsite employees not being allowed
access to Petitioner’s facilities, it is a logical conclusion that
all of Petitioner’s facilities should be made aware of the cease
and desist notice. In other words, it should be made known
at all of Petitioner’s facilities that offsite employees cannot be
denied access to the outside areas of Petitioner’s facilities for
purposes of exercising their Section 7 rights because
Petitioner maintained company-wide policies prohibiting
access. See Consol. Edison Co. of N.Y., 323 N.L.R.B. at 911-
12. Thus, the Board acted within its broad discretion in
fashioning the remedy in this case where the remedy advances
the policies of the Act. Id.
CONCLUSION
Substantial evidence exists on the record to support the
Board’s findings of fact, and because there are no errors of
law in the Board’s decision, we DENY Petitioner’s
application for review of the Board’s order in Case No. 01-
2478; and GRANT the Board’s application for enforcement
of its decision and order in Case No. 01-2673.

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Nos. 01-2478/2673 First Healthcare Corp. v. NLRB 39
1I agree with the panel majority’s holding that the Board’s conclusion
that off-site employees have non-derivative and substantial section 7
organizational rights was reasonable and should be given d eference. The
panel majority’s application of the substantial evidence standard of
review to this issue is proper because the issue involves the interpretation
of the NLRA . See Albertson’s Inc. v. NLRB, 301 F.3d 441, 44 8 (6th Cir.
2002) (“we review the Bo ard’s fac tual application and statutory
construction under a substantial evid ence standard, a deference that is
warranted if the Board’s conclusions are based upon a reaso nably
defensible construction of the Act.”) Furthermore, I agree with the
majo rity’s holding set forth in section III of the opinion that substantial
evidence supports the Board’s finding that Petitioner violated section
8(a)(1) by maintaining o r enforcing a rule that prohibits its off-duty
employees from soliciting in the outside nonwork areas of the facility
where they wo rk. (Majority Op. at 31 (emphasis added)).
_______________
DISSENT
_______________
JULIA SMITH GIBBONS, Circuit Judge, dissenting. This
case presents the difficult question of whether the National
Labor Relations Board (the Board) erred in concluding that
off-duty, off-site employees have a section 7 right to access
the outside non-working areas of their employer’s property
that outweighs the employer’s property rights, except where
restrictions on access are justified by business reasons. In
reaching this conclusion, the Board purported to balance the
employees’ section 7 rights against the employer’s property
rights. Reviewing the Board’s decision for substantial
evidence, the panel majority concludes that the Board did not
err in finding that the balance “tips in favor” of the section 7
organizational rights of off-site employees. (Majority Op. at
28.) I dissent because I believe that a de novo standard of
review applies in reviewing whether the Board erred in
concluding that the employees’ section 7 rights outweigh the
employer’s property rights, and, under a de novo standard of
review, the balance in this case favors the employer’s
property rights.1
40 First Healthcare Corp. v. NLRB Nos. 01-2478/2673
The majority correctly states that we review the Board’s
factual application and statutory construction under a
substantial evidence standard. Albertson’s Inc. v. NLRB, 301
F.3d 441, 448 (6th Cir. 2002). This level of deference,
however, is only warranted if the Board’s conclusions are
based on a reasonable construction of the Act. Id. Moreover,
“this Court gives no deference to the Board where the Board’s
decision ‘rest[s] on erroneous legal foundations.”” Id.
(quoting Lechmere, Inc. v. NLRB, 502 U.S. 527, 539 (1992)).
“Further, where the Board’s conclusions of law do not
interpret the NLRA, we review those conclusions de novo.”
Id. Similarly, we give no deference to the Board’s
interpretation of judicial precedent and review de novo the
Board’s interpretation of Supreme Court and Sixth Circuit
precedent. Id. (quotation omitted); see Lee v. NLRB, 325 F.3d
749, 754 (6th Cir. 2003).
The Board’s conclusion that “[o]n balance . . . the Section 7
organizational rights of offsite employees entitle them to
access to the outside, non-working areas of the employer’s
property, except where justified by business reasons” does not
involve an interpretation of the NLRA. Instead, determining
whether employees’ section 7 rights outweigh an employer’s
property rights requires a careful examination of the relevant
Supreme Court and Sixth Circuit precedent, as well as cases
from other circuits, and a determination of how that case law
applies to the facts present here. In reaching its decision
below, the Board relied upon several Supreme Court
decisions and ultimately declared that allowing employers to
exclude off-site employees pursuing organizational interests
would be “inconsistent with the Supreme Court’s admonition
that the ‘[a]ccommodation between employees’ [Section] 7
rights and employer’s property rights . . . must be obtained
with as little destruction of one as is consistent with the
maintenance of the other.’” First Healthcare Corp., 336
N.L.R.B. 62, 2001 WL 1685280, at *6 (2001) (quoting
Hudgens v. NLRB, 424 U.S. 507, 521 (1976)). The Board did
not discuss any basis in the statute for deciding this issue. Cf.
First Healthcare Corp., 2001 WL 1685280, at *10 (2001)

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Nos. 01-2478/2673 First Healthcare Corp. v. NLRB 41
(Hurtgen, dissenting) (noting that this case falls between two
landmark Supreme Court cases, but finding more relevant the
Supreme Court’s opinion in Hudgens and the D.C. Circuit’s
opinion in ITT Industries v. NLRB, 251 F.3d 995 (2001)).
Consequently, the proper standard of review of the Board’s
balancing of employees’ section 7 rights and employer’s
property rights is de novo. Lee, 301 F.3d at 448 (“where the
Board’s conclusions of law do not interpret the NLRA, we
review those conclusions de novo.”)
The Supreme Court first addressed the tension between
employees’ right to organize and employers’ property rights
in Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945). In
Republic Aviation, the Court held that employees have a right
to organize their fellow employees at their employer’s
facility, provided that the solicitation is confined to
nonworktime and distribution was confined to nonworktime
and nonwork areas. Id. at 803-05. The Court addressed the
issue of the accommodation of section 7 rights versus
property rights more directly in NLRB v. Babcock & Wilcox
Co., 351 U.S. 105 (1956). The Court held that non-
employees, such as union organizers, have no independent
right of access to an employer’s property to organize
employees at and around an employer’s facility. Id. at 113.
An exception exists where the inaccessibility of the
employees prevents “reasonable union efforts to communicate
with them.” Id. The Court noted that both organizational
rights and property rights are granted by the federal
government, and “[a]ccommodation between the two must be
obtained with as little destruction of one as is consistent with
the maintenance of the other.” Id. at 112. More recently, in
Lechmere, Inc. v. NLRB, 502 U.S. 527, 533 (1992), the
Supreme Court reaffirmed the general rule that “an employer
cannot be compelled to allow distribution of union literature
by nonemployee organizers on his property.”
While not directly on point, the Supreme Court’s decision
in Hudgens v. NLRB, 424 U.S. 507 (1976), is most analogous
to the present case. In Hudgens, striking factory employees
42 First Healthcare Corp. v. NLRB Nos. 01-2478/2673
sought to picket at a retail store owned by their employer and
located in a shopping mall. Id. at 509. In addressing whether
the mall owner unlawfully interfered with the employees’
section 7 rights by threatening to have them arrested, the
Court focused on the need to “seek a proper accommodation”
between section 7 rights and private property rights. Id. at
509, 521. According to the Court, “[w]hat is ‘a proper
accommodation’ in any situation may largely depend upon
the content and the context of the [section] 7 rights being
asserted.” Id. at 521. Furthermore, “[t]he locus of that
accommodation . . . may fall at differing points along the
spectrum depending on the nature and strength of the
respective [section] 7 rights and private property rights
asserted in any given context.” Id. at 522.
The Court also explained that neither Republic Aviation nor
Babcock was controlling. With regard to Republic Aviation,
the Court stated that a different balance exists when the
organizational activity is “carried on by employees already
rightfully on the employer’s property.” Id. at 522 n.10. The
Court distinguished Babcock on the basis that it involved
“organizational activity carried on by non-employees on the
employer’s property.” Id. at 521. The Hudgens Court
identified the differences present in the case before the Court,
including the fact that economic strike activity was involved,
the activity was conducted by employees, albeit at a different
location, and the property involved was that of a third party.
Id. at 522. After noting these differences, the Court remanded
the case for an accommodation between the section 7 rights
and the property rights. Id. at 523.
The only decision to address the issue presently before us
is the D.C. Circuit’s opinion in ITT Industries Inc. v. NLRB,
251 F.3d 995 (D.C. Cir. 2001). In ITT Industries Inc., the
court was faced with the question of “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. at 1000. The

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Nos. 01-2478/2673 First Healthcare Corp. v. NLRB 43
court began by noting that while “[i]t is not clear that the
Supreme Court’s access cases foreclose the Board’s
interpretation that § 7 confers upon offsite employees some
measure of free-standing, nonderivative organizational access
rights,” the Supreme Court’s cases “do make clear . . . that the
Board must take account of an offsite employee’s trespasser
status.” Id. at 997. Because the Board failed to take into
consideration the fact that the question of off-site employees’
access rights was an open one and failed to consider the
employer’s property rights or the concerns presented by
trespassing employees, the court remanded the case to the
Board for further consideration in light of these concerns. Id.
at 1004-05. The court then stated that assuming the off-site
employees have some measure of free-standing, nonderivative
access rights, “the Board must balance the conflicting
interests of the employees to receive information . . . with the
employer’s right to control the use of his property.” Id. at
1005. The court noted that even where all employees are in
the same representational unit, the employees at the different
facilities may have different interests. Id. Therefore, the
court held that if the Board determines that the off-site
employees have non-derivative section 7 access rights, “it
must then adopt a balancing test that takes proper account of
an employer’s predictably heightened property concerns.” Id.
As the above cases make clear, every access case requires
an accommodation between employees’ section 7 rights and
employers’ property rights. See, e.g., Hudgens, 424 U.S. at
521-22 (considering property rights where employees were
asserting nonderivative organizational right). Here, the off-
site employees seek access to another facility owned by their
employer for the purpose of assisting other employees in
organizing. The employees are not directly pursuing their
own interests because they are already organized. While
organizing the employees at other facilities may benefit the
already organized employees, the extent of the benefit must
be balanced against the employer’s property rights. As the
dissenting judge in the Board opinion noted, the benefit of
such organizational activities to the existing employees may
44 First Healthcare Corp. v. NLRB Nos. 01-2478/2673
be less when the employees are in different bargaining units
because they do not have common interests. First Healthcare
Corp., 2001 WL 1685280, at * 11. “The fact that they are in
separate units means that it has not been shown that they
share a ‘community of interest.’” Id. The lack of common
interest indicates that the benefit to the already organized
employees who are asserting their section 7 rights by
engaging in union solicitation at facilities other than the
facility where they work was slight.
Unlike the employees in Hudgens, who were directly
pursuing their section 7 right to strike in order to bring
economic pressure to bear on their employer, the off-site
employees here have failed to set forth a direct and immediate
interest in gaining on-site access to Petitioner’s other
facilities. While the off-site employees here have a section 7
right to assist employees elsewhere in their organizational
efforts, Hudgens does not stand for the proposition that such
off-site employees have a section 7 right to come onto the
Petitioner’s property at a facility where they do not work.
Moreover, there is no evidence that the off-site employees in
the instant case were unable to communicate effectively with
the employees of the targeted facilities in other manners,
including contacting such employees from the public
sidewalks and entrances to the facilities’ parking lots, without
trespassing.
Having examined the nature of the organized employees’
section 7 rights, it is necessary to consider the employer’s
property interests. As the court noted in ITT Industries Inc.,
the off-site employees are trespassers at the site where they do
not work. 251 F.3d at 1004. Unlike onsite employees who
are considered business invitees, off-site employees who
violate nonsolicitation policies are considered trespassers.
See Leachmere, 502 U.S. at 530. The Board failed to
consider the trespasser status of the off-site employees despite
its recognition that off-site employees may be deemed
trespassers and instead focused on the employer’s ability to
control an off-site employee’s conduct once such employee is

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Nos. 01-2478/2673 First Healthcare Corp. v. NLRB 45
on the property. The Board virtually ignored the employer’s
property rights and concentrated on the business justifications
for excluding off-site employees and the employer’s
management interests. The majority opinion also focuses
almost entirely on the issue of business justification, instead
of the employer’s property interest, which represents a
distinct legal concept. Furthermore, the majority fails to
recognize that an employee can also be a trespasser. The term
trespasser and nonemployee are not synonymous. Cf.
Hudgens, 424 U.S. 521-22 n.10 (noting that property
interests, as opposed to management interests, are implicated
when organizational activity is carried on by employees that
are not rightfully on the employer’s property).
Property rights are an essential part of the United States
Constitution. See NLRB v. Windemuller Elec., Inc., 34 F.3d
384, 394 & n.8 (6th Cir. 1994) (citing Dolan v. City of
Tigard, 512 U.S. 374 (1994)). According to the Supreme
Court, property owners have the right to control the use of
their property and regulate those who wish to use it. See
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.
419, 435 (1982). Moreover, the right to exclude others is
“one of the most essential strands in the bundle of rights that
are commonly characterized as property.” Nollan v.
California Coastal Comm’n, 483 U.S. 825, 831 (1987)
(quotations omitted). The Court has described a property
owner’s right to exclude as one of the most “treasured”
aspects of property rights. Loretto, 458 U.S. at 435.
Petitioner has a fundamental property right to exclude
others from its property. See Babcock, 351 U.S. at 112. The
exercise of the property right to exclude others falls within the
scope of state trespass law. Sears, Roebuck & Co. v. San
Diego Dist. Council of Carpenters, 436 U.S. 180, 181
46 First Healthcare Corp. v. NLRB Nos. 01-2478/2673
2The Court in Sears noted that private property rights yield to section
7 rights only in “cases involving unique obstacles to nontresspassory
methods of communication with the employees.” 436 U.S. at 205-06
n.41.
(1978).2 Under California law, individuals working on the
property of another, in the interest of the property owner, are
business invitees. Jenson v. Kenneth I. Mullen, Inc., 211
Cal.App.3d 653, 658 (Cal. Ct. App. 1989). When an invitee
enters upon portions of the property where he has no right to
be, however, he may become a trespasser. Powell v. Jones,
133 Cal.App.2d 601, 606 (Cal. Ct. App. 1955). California
law defines trespasser as one who has entered the property
without consent by the owner. See Oettinger v. Stewart, 24
Cal.2d 133, 136 (Cal. 1944). The off-site employees in this
case were trespassers, not business invitees like on-site
employees. On balance, Petitioner’s right to exclude the off-
site employee trespassers outweighs the off-site employees’
section 7 right to assist in organizing other employees with
whom they lack common interests.
For all the reasons set forth above, I would find that the
Board erred in concluding that Petitioner violated section
8(a)(1) of the Act by denying access to its property to persons
employed by Petitioner at another facility owned by
Petitioner.

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