ITT Industries, Inc.

National Labor Relations Board - Board Decisions

May 13, 2004

341 N.L.R.B. 937 (N.L.R.B. 2004)

ITT INDUSTRIES, INC. 937
ITT Industries, Inc. and International Union, United
Automobile, Aerospace & Agricultural Imple-
ment Workers of America (UAW), AFL–CIO.
Case 7–CA–40946
May 13, 2004
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On May 5, 2000, the National Labor Relations Board
issued its Decision and Order in this proceeding.1 The
Board found, inter alia, that the Respondent violated Sec-
tion 8(a)(1) of the Act by prohibiting handbilling by its
offsite employees in its parking lot.
Subsequently, the Respondent filed a petition for re-
view of the Board’s Order with the United States Court
of Appeals for the District of Columbia Circuit and the
Board cross-petitioned for enforcement. On June 5,
2001, the court vacated the Board’s decision that the Re-
spondent had committed an unfair labor practice by pro-
hibiting offsite employees from handbilling in its parking
lot, and remanded the case to the Board for further pro-
ceedings consistent with its opinion.2
By letter dated November 15, 2001, the Board notified
the parties that it had accepted the remand and invited the
parties to file statements of position. Thereafter, the Re-
spondent, the General Counsel, and the Charging Party
each filed position statements.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the court’s remand and finds, for reasons ex-
plained below, that the Respondent violated Section
8(a)(1).3
Background
The Respondent manufactures automotive and related
products, and has three facilities in Oscoda, East Tawas,
and Tawas City, Michigan. Approximately 600 employ-
ees work at the Oscoda plant, and approximately 180 at
each of the other two plants. All three plants are within a
short commuting distance of each other,4 and employees

1 331 NLRB 4.
2 ITT Industries v. NLRB, 251 F.3d 995 (D.C. Cir. 2001).
3 We shall substitute the attached notice for that set out in the judge’s
decision, in accordance with our decision in Ishikawa Gasket America,
Inc., 337 NLRB 175 (2001).
4 The East Tawas facility, located between the Oscoda facility and
the Tawas City facility, is approximately 14 miles from the former and
5 to 6 miles from the latter.
have transferred from one plant to another over the
years.5
a. Relevant facts
In 1994, the Union began an organizing drive
among the Respondent’s employees for a single unit con-
sisting of employees in the three plants. The Union lost
an election held on March 30, 1995, and thereafter filed
objections and unfair labor practice charges. The Board
set aside the election, finding that the Respondent en-
gaged in unfair labor practices and objectionable con-
duct.6 However, on June 10, 1998, while the case was
pending before the Sixth Circuit, the Union filed a sec-
ond petition for a three-plant unit. Thereafter, the Union
filed an unfair labor practice charge in the instant pro-
ceeding, and on July 25, 1998, withdrew the new peti-
tion.
On April 28, 1998,7 approximately seven employees
from the Respondent’s Oscoda plant handbilled in sup-
port of the Union in the parking lot of the East Tawas
plant. The handbills described employee rights under the
Act. The handbillers also asked employees to sign an
organizing petition. The parking lot at the East Tawas
plant is surrounded by a 6-foot high cyclone fence and
has approximately 110 parking spaces. The gates to the
parking lot are locked on the weekends but not during the
week.8
The superintendent of the East Tawas plant, Jeffrey
Minnick, told the handbillers they were on private prop-
erty and had to leave. When the employees identified
themselves as employees of the Respondent from its Os-
coda plant, Minnick told them they had to handbill out-
side the fence.
On May 14, about eight of the Respondent’s Oscoda
employees again handbilled on the parking lot of the East
Tawas plant.9 After they identified themselves as em-
ployees of the Respondent’s Oscoda plant, Minnick
again told them they had to leave the parking lot.
The success of these offsite efforts was mixed. On
April 28, about a quarter of the 50 or 60 cars entering or
exiting the parking lot during the hour that the handbill-
ers were present stopped for the handbillers. On May 14,
5 For example, in 1998, 18 employees were transferred between the
three plants.
6 ITT Automotive, 324 NLRB 609 (1997), enfd. in relevant part 188
F.3d 375 (6th Cir. 1999).
7 All dates hereafter are in 1998 unless otherwise stated.
8 The plant is open 24 hours a day during the week and is closed on
weekends.
9 On each occasion, the Oscoda employees wore union insignia.
341 NLRB No. 118
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 938
no more than 3 out of 20 or 30 cars stopped at the side
gate during an hour of attempted handbilling.10
The Respondent asserts that the offsite employees
were prohibited from handbilling in its East Tawas park-
ing lot because of security concerns. In support of its
assertion, the Respondent cites its strict policy of not
allowing persons not employed at the East Tawas facility
onto that facility.11 The one exception to this rule is that
relatives and friends of employees are allowed to drive
onto the parking lot to drop off or pick up employees.
However, the relatives or friends are not allowed to get
out of their vehicles. The Respondent also states that its
concerns about security are warranted because of various
incidents of vandalism that occurred over the past few
years. In 1996 or 1997, the window of a car was shat-
tered. Also in 1996 or 1997, the lug nuts on a supervi-
sor’s vehicle were loosened a week after the supervisor
had discharged an employee.12 The record also estab-
lishes that, at unspecified times, tires were slashed and a
stranger came onto the property to fight with an em-
ployee after he got off work. Further, in December 1997,
the estranged husband of one of the Respondent’s em-
ployees telephoned the Respondent’s receptionist to say
that he had a gun and was coming after his wife. After
this last incident, the Respondent conducted an investiga-
tion and installed a cyclone fence. The fence encloses
the plant and is locked at night.13
b. The Board’s original decision
In its original decision, the Board adopted without
comment the judge’s finding that the Respondent had
violated Section 8(a)(1) of the Act by prohibiting hand-
billing by its offsite employees in its parking lot.14 The
judge applied the standard, set forth in Tri-County Medi-
cal Center,15 that prohibits an employer from denying

10 According to employee Sherry Spaulding, no vehicle stopped dur-
ing that hour. However, according to employee Wayne Yoesting,
“maybe three” vehicles stopped during that time.
11 The court described this policy as having been instituted in March
1998 following installation of a 6-foot cyclone fence. ITT v. NLRB,
supra at 997. However, we note that Minnick testified, “[T]hat’s al-
ways been the rule.”
12 We correct the judge’s inadvertent description of these incidents
as having occurred “a few years earlier” and that the latter occurred “a
few weeks” after the supervisor discharged the employee.
13 On the issue of security, Minnick also testified that the Respon-
dent does not have security cameras, nor has it requested the police to
patrol the area. Minnick testified that the Respondent does not employ
a full-time security person at the East Tawas facility, but that “every-
body just kind of looks out for each other.”
14 The Board also found that the Respondent violated Sec. 8(a)(1) by
disparately prohibiting an employee from talking about the Union and
dismissed an allegation that the Respondent violated Sec. 8(a)(1) by a
supervisor driving his vehicle close to handbilling employees. The
D.C. Court affirmed this 8(a)(1) violation.
15 222 NLRB 1089 (1976).
off-duty employees entry to parking lots and other non-
working areas to handbill except where justified by busi-
ness reasons. The judge relied on Board cases holding
that an employer’s employees from one plant are consid-
ered employees of the employer when they handbill at
another of the employer’s plants.16
With regard to the Respondent’s asserted business rea-
son, its concern about vandalism, the judge recounted
evidence of vandalism to vehicles parked in the Respon-
dent’s parking lot, including, as described above, the
shattering of a car’s window and the loosening of lug
nuts on a tire of a supervisor’s vehicle in 1996 or 1997.
The judge found this evidence “woefully inadequate” to
warrant banning the handbillers from its parking lot. The
judge cited in particular the Respondent’s policy of al-
lowing relatives and friends of employees to come onto
the parking lot to drop off or pick up employees.17 The
judge concluded that the Respondent’s prohibition of
access to its parking lot for handbilling violated Section
8(a)(1). The Board affirmed the judge in this respect.
c. The D.C. Circuit’s decision
On June 5, 2001, the court vacated the Board’s deci-
sion and remanded the case “for further proceedings con-
sistent with this opinion.”18 The court explained, “[W]e
simply cannot assess the reasonableness of the Board’s
decision to apply the Tri-County test to off-site employ-
ees in the present case.”19 Noting that “[b]ecause it is by
no means obvious that Section 7 extends nonderivative
access rights to off-site employees . . . the Board was
obliged to engage in considered analysis and explain its
chosen interpretation.”20 The court commented that
“[n]one of the Board’s previous cases . . . take any ac-
count of the Court’s different access decisions or the
trespass considerations articulated therein.”21 The court,
therefore, vacated the pertinent portion of the Board’s
decision and remanded it for the Board “to consider and
craft its interpretation in light of these concerns.”22
d. The Board’s Decision in Hillhaven
Following the court’s decision, the Board specifically
addressed the court’s concerns in Hillhaven Highland
16 Southern California Gas Co., 321 NLRB 551 (1996), and Postal
Service, 318 NLRB 466 (1995).
17 The judge also noted, with regard to the strength of the Respon-
dent’s safety concerns, the absence of any security cameras, requests
for the police to patrol the area, and Minnick’s testimony (see fn. 13,
supra).
18 ITT Industries v. NLRB, supra at 1006–1007.
19 Id. at 1004.
20 Id.
21 Id.
22 Id. at 1005.
ITT INDUSTRIES 939
House,23 which presented the same issue.24 In Hill-
haven, the Board stated, “[W]e are guided today by the
court’s decision” in ITT Industries v. NLRB, supra.25 In
a response to the ITT Industries’ court’s directive, the
Board concluded:

(1) [U] nder Section 7 of the Act, offsite employees (in
contrast to nonemployee union organizers) have a non-
derivative access right, for organizational purposes, to
their employer’s facilities; (2) that an employer may
well have heightened private property-right concerns
when offsite (as opposed to onsite) employees seek ac-
cess 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, nonworking areas of the employer’s property,
except where justified by business reasons, which may
involve considerations not applicable to access by off-
duty, onsite employees. To this extent, the test for de-
termining the right to access for offsite visiting em-
ployees differs, at least in practical effect, from the Tri-
County test for off-duty, onsite employees.26

With respect to the Section 7 rights of offsite employ-
ees, the Board stressed that when offsite employees seek
to organize similarly situated employees at another em-
ployer facility, the employees seek strength in numbers
to increase the power of their union and ultimately to
improve their own working conditions. Regarding an
employer’s private property concerns, the Board recog-
nized that an employer confronted by access claims of
offsite employees may be faced with unique problems
implicating security, traffic control, and the like. The
Board found, however, that “an employer’s property in-
terests, as well as its related management interests, may
be given due recognition without granting it the unquali-
fied right to exclude offsite employees pursuing organ-
izational activity.”27 In discussing the balancing of Sec-
tion 7 rights and property concerns, the Board cautioned,
“that an employer must demonstrate why its security
needs or related business justifications warrant restric-
tions on access by offsite employees,” and that it would

23 336 NLRB 646 (2001), enfd. 344 F.3d 523 (6th Cir. 2003).
24 In Hillhaven, the offsite employees seeking access were not in the
same prospective bargaining unit as the onsite employees. However,
the case presented the same issue insofar as it addressed whether, under
Sec. 7 of the Act, offsite employees have a freestanding, nonderivative
right of access to their employer’s premises.
25 Hillhaven, supra at 648.
The Board noted, at fn. 7, “On remand in ITT Industries, of course,
the Board may wish to refine or supplement the analysis offered here,
in response to the arguments made by the parties in that case.”
26 Hillhaven, supra at 648.
27 Id. at 650.
review “an employer’s proffered justification carefully,
on a case-by-case basis.”28
e. The Sixth Circuit’s decision in Hillhaven Highland
House
The Sixth Circuit enforced the Board’s decision in
Hillhaven,29 holding that “the Board’s finding that offsite
employees enjoy Section 7 organizational rights of ac-
cess that are nonderivative was reasonable under the
law.”30 In particular, the court found significant the fact
that “offsite and onsite employees share the same com-
mon 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.”31
Analysis
In accepting the court’s remand of the issue, we are
bound to regard its opinion as the law of the case and to
follow the court’s directive. However, as discussed
above, the Board in Hillhaven, supra, addressed the
court’s directive to develop a balancing test between the
property interests of an employer and the Section 7 or-
ganizational rights of offsite employees. Therefore, we
need only apply that test to the facts of this case.
Applying Hillhaven, we find, for the following rea-
sons, that the Respondent violated Section 8(a)(1) by
denying access to offsite employees to handbill in its
parking lot.
a. Section 7 Rights of offsite employees
As described above, the offsite employees here sought
to handbill fellow employees as part of a campaign to
organize the employees at the Respondent’s three facili-
ties, including the East Tawas facility. Thus, as offsite
employees, they had a nonderivative right of access un-
der Hillhaven.32 Significantly, the offsite employees
were seeking to organize the East Tawas employees in a
single, three-plant unit which included their own Oscoda
plant. Thus, the common concerns shared by the Re-
spondent’s onsite and offsite employees were even
greater than those that existed in Hillhaven. As the
Board acknowledged in Hillhaven, “[t]he offsite em-
28 Id.
The Board further explained that “[i]n some cases, an influx of off-
site 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 them-
selves and thus to determine whether the person seeking access is, in
fact, an offsite employee of the employer.” Id.
29 First Healthcare Corp., v. NLRB, 344 F.3d 523 (6th Cir. 2003).
30 Id. at 538.
31 Id.
32 Hillhaven, supra at 649.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 940
ployee’s personal stake in organizing his counterparts at
a different employer facility is clearest where he is, or
will be, part of a multifacility bargaining unit that in-
cludes onsite employees.”33 Consequently the Section 7
rights at issue here are indeed substantial.34
b. The Respondent’s private property concerns
Under Hillhaven, we must next assess the Respon-
dent’s business justification for its prohibition. Specifi-
cally, we must determine whether the Respondent’s
business reasons justify the infringement of the offsite
employees’ substantial access rights afforded them under
Section 7.
As noted above, the Respondent contends that it pro-
hibited access to its parking lot to the Oscoda employees
based on security considerations, and cites in support its
policy of denying access to persons not employed at East
Tawas. The only exception to this rule is that relatives
and friends of employees are allowed to drop off or pick
up employees from work, but they are not allowed to get
out of their vehicles when they arrive on the parking lot.
The Respondent also cites the various incidents of van-
dalism to vehicles and the threats to personal security
that occurred over the past few years. And, after an inci-
dent involving a threat to one of its employees, the Re-
spondent conducted an investigation and had a cyclone
fence installed around its property.
c. Balancing of Section 7 rights and property concerns
Although we agree that the record demonstrates that
the Respondent had legitimate security concerns, we find
these concerns do not justify the total exclusion of the
Respondent’s offsite employees from its parking lot.
First, the handbillers were not strangers to the Respon-
dent; they were the Respondent’s employees. Upon their
arrival, on both April 28 and May 14, the offsite employ-
ees announced their identity as Oscoda employees and
their purpose in being at the East Tawas facility. There
is no evidence that the Respondent questioned their in-
tent to handbill or their claim to be its employees.35
Thus, as employees of the Respondent, their presence did
not implicate the security concerns posed by the presence
of nonemployees on the Respondent’s property. Having
identified themselves as employees of the Respondent, it
was understood that they were subject to discipline if
they engaged in vandalism or other misconduct. As was
noted in Hillhaven,:36

33 Id.
34 Id.
35 The Respondent, of course, had the authority to require the Os-
coda employees to specifically verify that they were its employees,
which it did not do here. Hillhaven, supra at 650.
36 Id. at 649.
Surely it is easier for an employer to regulate the con-
duct of an employee—as a legal and 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.

Second, the Oscoda employees attempted to handbill
at 6 a.m., a time when there was a lot of activity in the
parking lot. This was hardly a time when the parking lot
was, therefore, open to unobserved vandalism, such as
had occurred in the past. Further, there was absolutely
no evidence of any misconduct or proclivity toward such
misconduct by any of the Oscoda employees who were
attempting to handbill.
In this regard, it is also significant that the Respondent
did not install security cameras on its property, did not
employ security guards to protect the premises, and did
not request the police to patrol the area. Instead, accord-
ing to Supervisor Minnick, the Respondent has an infor-
mal practice whereby “everybody kind of looks out for
each other.” Concededly, the decision to install cameras
or hire security guards is an issue of the Respondent’s
own business judgment, and we do not seek to substitute
our judgment for that of the Respondent. However, the
Respondent has claimed that its security concerns war-
rant a rule that substantially curtails the Section 7 rights
of its offsite employees. We find that the Respondent’s
claimed need for this rule must be afforded some degree
of skepticism when there are other measures—that do not
curtail Section 7 rights—that have not been taken be-
cause the Respondent believes that it is enough to satisfy
security concerns that everyone “looks out for one an-
other.”
Third, there is no evidence, or claim, that the handbill-
ing would cause any disruption to traffic in the parking
lot. Further, the record fails to demonstrate the possibil-
ity of any unique logistical problems that might have
arisen from the handbilling.37
In view of these factors, it is clear that the Respon-
dent’s complete refusal to allow handbilling by its own
offsite employees was not reasonably tailored to address
its concerns about protecting its property against vandal-
ism or violence against its onsite employees. Weighing
the Section 7 organizational rights of the Respondent’s
offsite employees against the Respondent’s security con-
cerns, we find that the Respondent has not met its bur-
den, under Hillhaven, of demonstrating that its security
37 See Hillhaven, supra at 649–650, “employer’s right to control the
disputed premises likely implicates security, traffic control, personnel,
and like issues that do not arise when only onsite employee access is
involved,” citing ITT Industries v. NLRB, 251 F.3d 1005.
ITT INDUSTRIES 941
needs warranted the absolute prohibition of handbilling
on its property by offsite employees.
Our dissenting colleague asserts that the issue pre-
sented by this case is whether the Respondent’s defense
against vandalism and other misconduct is reasonable.
We disagree. The issue is whether the Respondent has
demonstrated why its defense against vandalism and
other misconduct warrants an absolute ban on access to
its property by its offsite employees. As we have dis-
cussed earlier, the Respondent’s offsite employees enjoy
a substantial Section 7 right to access to the outside,
nonworking areas of the Respondent’s property. The
Hillhaven decision requires that the Respondent’s secu-
rity policy be analyzed in the context of its restrictions on
that right. Thus, under Hillhaven, an employer’s policy
restricting access to its property may reasonably restrict
the access of strangers, but may require “modification”
when applied to the employer’s offsite employees who
have a statutory right to access. Our dissenting colleague
apparently has misunderstood this principle. Under Hill-
haven, employers’ reasonable measures to protect against
legitimate security threats do not “take a back seat” to
employees’ Section 7 rights. Here, the Respondent failed
to show that the balance should be struck against all ac-
cess of its offsite employees to the outside, nonworking
areas of its property.
For all of the reasons set out above, we have found that
the security concerns expressed by the Respondent do
not justify the absolute restriction of access to offsite
employees that the Respondent has imposed. We are
mindful that our nation faces significant security risks.38
We are equally mindful of our responsibility to protect
the statutory rights of employees at such times, and at all
times. The test established in Hillhaven does not “tam-
per with” employers’ ability to address significant secu-
rity risks. Contrary to our dissenting colleague, the test
we apply here does not compromise employers’ legiti-
mate security concerns. Instead, it strikes a balance be-
tween an employer’s security concerns and the Section 7
access rights of offsite employees by recognizing that an
employer may have heightened private property-right

38 Our dissenting colleague bases his conclusion that the Respon-
dent properly imposed an absolute ban on access to its parking lot in
part on his observation that the nation now faces significant security
risks and employers must be particularly vigilant at this time of our
nation’s history. The Respondent does not claim, nor is there any re-
cord evidence, that any increased risk that might exist with respect to
our nation’s general security has any bearing on this case the events of
which occurred in 1998. As far as we are aware, parking lots in auto-
motive product plants in Michigan have not been identified as likely
terrorist targets. It is our hope that Board Member concerns over na-
tional security do not become a mantra used to justify unfounded limi-
tations on important employee rights.
concerns when its offsite, rather than onsite employees,
seek access to its property, and by affording an employer
the right to demonstrate why its security needs warrant
restrictions on the access of its offsite employees to the
outside, nonworking areas of its property. Applying the
Hillhaven test here, we find that the Respondent has not
shown that its concern over past acts of vandalism and
two threats to onsite employees justifies an absolute re-
striction of the statutory access rights of its offsite em-
ployees.
Our dissenting colleague also asserts that the availabil-
ity of other means of communication, specifically, the
ability to handbill offsite, suggests that the Respondent’s
prohibition was permissible. Contrary to our colleague’s
contention, nothing in the Board’s decision in Hillhaven
mentions that the alternative means of access is a rele-
vant consideration in determining the access rights of
offsite employees. Moreover, our colleague’s contention
was specifically rejected by the Sixth Circuit in Hill-
haven, which said that an inquiry into such considera-
tions “is made only when nonemployees are on the em-
ployer’s property.”39 Furthermore, the issue of the avail-
ability of alternative means of communication was not
fully litigated by the parties.
In sum, the Respondent’s offsite employees had a free-
standing, nonderivative right under Section 7 of the Act
to handbill in the Respondent’s parking lot at the Re-
spondent’s East Tawas facility, and the Respondent has
failed to present a business reason sufficient to justify
prohibiting their access to the parking lot. Accordingly,
we reaffirm the Board’s earlier finding that the Respon-
dent violated Section 8(a)(1) of the Act by prohibiting
handbilling by its offsite employees in its parking lot.
ORDER
The National Labor Relations Board reaffirms the
Board’s original order, reported at 331 NLRB 5, as
modified below, and orders that the Respondent, ITT
Industries, Inc., Tawas City, Michigan, its officers,
agents, successors, and assigns shall take the actions set
forth in that Order as modified.
1. Substitute the attached notice for that of the admin-
istrative law judge.

CHAIRMAN BATTISTA, dissenting.
39 First Healthcare Corp. v. NLRB, supra, 344 F.3d at 541. In this
regard, we find that our colleague’s reliance on Scott Hudgens v. NLRB,
424 U.S. 507 (1976), is misplaced. In that case, “the property interests
impinged upon . . . were not those of the employer against whom the
[Section] 7 activity was directed, but of another [i.e., the owner of a
shopping mall].” 424 U.S. at 522. Here, by contrast, the offsite em-
ployees were seeking access to the property of their own employer,
who—as noted above—was aware of their employment status and of
the possibility for discipline if they engaged in misconduct.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 942
Contrary to my colleagues, I do not find that the Re-
spondent violated Section 8(a)(1) of the Act by prohibit-
ing its offsite employees from handbilling at its East
Tawas parking lot.
The Respondent, for valid security reasons, has a pol-
icy which forbids access to the plant to all persons who
do not work at the plant. The issue is whether the Re-
spondent must modify that policy so as to permit em-
ployees who work at other sites to come onto the prop-
erty to engage in Section 7 activity. I would not require
the Respondent to modify its policy.
The Respondent’s property has been subjected to inci-
dents of vandalism, violence, and threats of violence in
the past. Specifically, there have been several incidents
of damage to vehicles, an incident involving a person
who entered the property to physically confront an em-
ployee, and a threat to shoot an employee. These inci-
dents clearly demonstrate substantial security concerns,
and a need to limit access to those who work at the facil-
ity.
The security measures undertaken by the Respondent
bore no relation to any protected concerted activity. To
the contrary, the Respondent has long prohibited, from
the premises, persons who are not employed at that facil-
ity. Thus, the policy is not aimed at employees, much
less employees who are engaged in Section 7 activity.
Indeed, an employee of the East Tawas plant can engage
in Section 7 activity on that property. An employee of
another plant cannot engage in any activity at East
Tawas, irrespective of whether the activity is Section 7 or
not.
Plainly, the Respondent’s access policy was developed
solely in response to its security concerns. The Respon-
dent reasonably sought to protect its property and to en-
sure the safety of its employees. Thus, the Respondent’s
business concerns were far more serious than those at
issue in Hillhaven Highland House, 336 NLRB 646
(2001), enfd. 344 F.3d 523 (6th Cir. 2003). In that case,
the employer merely contended that prohibiting access to
the offsite employees was necessary in order to provide
for the “welfare, peace, and tranquility” of its nursing
home residents,” even though the offsite employees
would not have entered the nursing home and thus would
not have likely come into contact with the nursing home
residents.1 In the instant case, the Respondent was not
relying on mere speculation, but rather on actual events
of vandalism and threats of physical harm.
My colleagues contend that there were other measures
that the Respondent could have undertaken to deal with
its security concerns. In this regard, my colleagues sug-

1 Hillhaven, supra at 650.
gest surveillance cameras, security guards, discipline of
employees who engage in misconduct, and restricting
access only during times when vandalism is more likely.
My colleagues thus substitute their own governmental
judgment for that of the Respondent. In my view, the
issue is whether the Respondent’s defense against van-
dalism and other misconduct was reasonable. The fact
that my colleagues believe that a different defense would
be more reasonable is quite beside the point.
My colleagues further contend that even if the Re-
spondent’s response to the vandalism is reasonable, it
nonetheless violates Section 8(a)(1) because it represents
an “absolute” ban of access by the offsite employees. In
other words, my colleagues would prohibit even reason-
able measures to protect against legitimate security risks.
Thus, my colleagues’ holding, taken to its logical conclu-
sion, warrants the inference that reasonable measures to
protect against legitimate security threats must take a
back seat to employees’ Section 7 rights. I strongly dis-
agree. In balancing Section 7 rights against security
measures, I strike the balance here in favor of the latter.
The employees have many other means to convey their
message, and the Respondent had substantial security
interests which it sought reasonably to protect. The Act
does not command that legitimate security concerns must
be compromised in order to afford employees additional
opportunities to engage in union organizing.
My view is grounded firmly in property rights and en-
trepreneurial prerogatives. In addition, I note that our
nation now faces significant security risks. Employers
(and the rest of the public) must be particularly vigilant
at this time of our nation’s history. This is not the time
to tamper with an employer’s security policies.
I recognize that the Respondent has not claimed an in-
creased risk in our nation’s national security as a basis
for the security measures it has taken. However, I am
concerned that my colleagues’ decision today suggests
that any legitimate security concern by an employer—
including one related to national security—could be
compromised by the desire to expand employees’ oppor-
tunities to engage in activity otherwise protected by Sec-
tion 7 of the Act.
Interestingly, my colleagues fault the Respondent for
not exploring alternative means of security, but at the
same time they ignore the fact that the offsite employees
had alternative means of communicating with the onsite
employees. My colleagues create this double standard
for a very good reason. There were numerous alternative
means. To begin with, there were numerous alternatives
away from the site (e.g. homes, taverns, etc). Further,
the employees were able to handbill just a few feet out-
side the gates. At one such location, at least one-fourth
ITT INDUSTRIES 943
of the drivers stopped to take the union literature. The
fact that others declined to take the literature does not
establish that the others were unable to take it if they
wished. Thus, despite the Respondent’s access rules, the
free exercise of Section 7 rights occurred just a few feet
away, all the while preserving the security needs of the
Respondent.
I recognize that, in Hillhaven, the Sixth Circuit said
that the Board was not “required” to consider the exis-
tence of alternative means of access. Even accepting that
view, the Board is not precluded from considering that
matter. Indeed, in Scott Hudgens v. NLRB, 424 U.S. 507
(1976), a case involving employees from another site, the
Court instructed the Board to take all factors into account
in accommodating Section 7 rights and property rights.
And the Board, on remand, expressly considered alterna-
tive means of access.2
For all the above reasons, I find that the Respondent’s
property rights and security concerns, plus the employ-
ees’ alternative means of access, outweigh the Section 7
rights involved. Thus, the Respondent could prohibit its
offsite employees from handbilling on its East Tawas
parking lot. Accordingly, the Respondent’s prohibitions
did not violate the Act.

APPENDIX
NOTICE TO EMPLOYEES

2 Scott Hudgens, 230 NLRB 414, 417 (1977). I cite Hudgens only
for the proposition that the balancing should include the factor of “al-
ternative means of access.”
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT deny our off-duty employees access to
our parking lots for the purpose of engaging in the distri-
bution of union campaign materials.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL permit off-duty employees, whether or not
those employees are assigned to any particular facility,
access to our parking lots for the purpose of distributing
union campaign materials.
ITT INDUSTRIES, INC.