Lechmere, Inc. v. NLRB, 502 U.S. 527, 9 (1992)

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Cite as: 502 U. S. 527 (1992)

Opinion of the Court

Sears, Roebuck & Co. v. Carpenters, 436 U. S. 180 (1978). As in Central Hardware and Hudgens, the substantive 7 issue in Sears was a subsidiary one; the case's primary focus was on the circumstances under which the NLRA pre-empts state law. Among other things, we held in Sears that arguable 7 claims do not pre-empt state trespass law, in large part because the trespasses of nonemployee union organizers are "far more likely to be unprotected than protected," 436 U. S., at 205; permitting state courts to evaluate such claims, therefore, does not "create an unacceptable risk of interference with conduct which the Board, and a court reviewing the Board's decision, would find protected," ibid. This holding was based upon the following interpretation of Babcock:

"While Babcock indicates that an employer may not always bar nonemployee union organizers from his property, his right to do so remains the general rule. To gain access, the union has the burden of showing that no other reasonable means of communicating its organizational message to the employees exists or that the employer's access rules discriminate against union solicitation. That the burden imposed on the union is a heavy one is evidenced by the fact that the balance struck by the Board and the courts under the Babcock accommodation principle has rarely been in favor of trespassory organizational activity." 436 U. S., at 205 (emphasis added; footnotes omitted).

We further noted that, in practice, nonemployee organizational trespassing had generally been prohibited except where "unique obstacles" prevented nontrespassory methods of communication with the employees. Id., at 205-206, n. 41.

B

Jean Country, as noted above, represents the Board's latest attempt to implement the rights guaranteed by 7. It sets forth a three-factor balancing test:

535

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