Operations In Fiscal Year 1988 - National Labor Relations Board

Unfair Labor Practices 65with the weight the majority attached to telephone calls, and ultimatelyhome visits, citing his dissent in SCNO.6. Access to Employer PremisesIn Jean Country," the Board clarified its approach in accesscases and specifically concluded that the availability of reasonablealternative means is a factor that must be considered in everyaccess case. The Board overruled Fairmont Hotel, 282 NLRB 139(1986), to the extent inconsistent with its decision in Jean Country.In Fairmont Hotel, the Board announced a test under whichthe strength of the claim of Section 7 right would be balancedagainst the strength of the property right involved, with thestronger right prevailing. If the rights were deemed relativelyequal in strength, the existence of effective alternative means ofcommunication would then become determinative. Chairman Stephensexpressed his disagreement with the plurality view in hisseparate concurring opinion in Fairmont. Member Johansen hasconsistently viewed the factor of alternative means of communicationas one that is always of some significance in assessing theweight of the Section 7 claim.In cases decided subsequent to Fairmont, it became apparentthat individual Board Members differed over interpretation andapplication of the Fairmont test. On consideration of its experiencein applying the Fairmont test and on reexamination of twoprincipal Supreme Court cases (NLRB v. Babcock & Wilcox Co.,351 U.S. 105 (1956), and Hudgens v. NLRB, 424 U.S. 507 (1976)),the Board believed that further clarification of its approach inaccess cases was necessary."Accordingly, in all access cases our essential concern will bethe degree of impairment of the Section 7 right if access shouldbe denied, as it balances against the degree of impairment of theprivate property right if access should be granted," the Boardsaid. The Board continued:We view the consideration of the availability of reasonably effectivealternative means as especially significant in this balancingprocess. In the final analysis, however, there is no simpleformula that will immediately determine the result in everycase. As the Court made clear in Hudgens, we are trying toaccommodate interests along a spectrum.The Board stated:Factors that may be relevant to assessing the weight ofproperty rights include, but are not limited to, the use towhich the property is put, the restrictions, if any, that are imposedon public access to the property, and the property's relativesize and openness. (The term "property" includes both21 291 NLRB No. 4 (Chairman Stephens and Members Johansen, Cracraft, and Higgins).