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Under Pennsylvania law, an employer has the right to prohibit union organizers from distributing leaflets in a company driveway — even if it qualifies as a “public right-of-way” — unless the local municipality has expressly said such handbilling must be allowed, a federal appeals court has ruled. In Snyder’s of Hanover Inc. v. National Labor Relations Board, the 3rd U.S. Circuit Court of Appeals overturned two NLRB orders that held Snyder’s liable for unfair labor practices. But the appellate court upheld a related NLRB order that said Snyder’s had engaged in illegal surveillance of its employees that was designed to discourage workers from taking literature from union organizers. According to court papers, five representatives of the United Food and Commercial Workers Union arrived at the entrance to Snyder’s facilities in York, Pa., on Oct. 1, 1998, to distribute union handbills to workers as they exited during a shift change. When company officials learned of the presence of the union reps in the driveway, company officials told them they were trespassing and ordered them to leave. But the union workers insisted they had a legal right to be there since the driveway was a right-of-way. Company officials responded by calling the police. But police later said that the union workers were right and that they were entitled to remain in the driveway so long as they were peaceful and did not impede the flow of traffic. The NLRB later found that Snyder’s had committed three unfair labor practices — prohibiting union workers from distributing literature in a public right-of-way, calling the police in an attempt to have the union workers removed for trespassing, and engaging in unlawful surveillance by calling out individual workers’ names as they approached the union reps. On appeal, Snyder’s argued that all of its conduct was legal. The NLRB argued that the case turned on a question of Pennsylvania law which gives the union organizers the right to distribute handbills on a public right-of-way unless the local municipality has not authorized it. Snyder’s failed to prove its case, the NLRB argued, since it had no proof that Penn Township did not allow handbilling in its public rights-of-way. But Chief 3rd Circuit Judge Edward R. Becker found that the NLRB was demanding that Snyder’s meet the “substantial evidence” test for a purely legal question. “The municipality’s authorization or non-authorization of handbilling by public ordinance is a legal issue … and not an issue of fact for which Snyder’s bore the burden of proof,” Becker wrote in an opinion joined by 3rd Circuit Judges Samuel A. Alito and Marjorie O. Rendell. Becker found that Pennsylvania law on the issue of the right of a municipality to control handbilling within public rights-of-way “is checkered, especially when viewed through the lens of constitutional concerns.” Complicating the issue, Becker said, was the fact that the edge of a driveway is “not necessarily the type of public area, such as a street, a park or a sidewalk, that First Amendment jurisprudence considers to have been immemorially used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” But Becker found that the constitutional question didn’t need to be answered since the NLRB conceded that if Penn Township did not authorize handbilling on its public rights-of-way, Snyder’s would not have violated the law. Becker looked to Penn Township’s ordinances and found there was no express authorization for handbilling on rights-of-way. “We conclude that under Pennsylvania law, as represented to us by the parties, Snyder’s had the right to exclude organizers from the right-of-way on its property,” Becker wrote. As a result, Becker said, the two NLRB orders that held Snyder’s liable for attempting to exclude the organizers and for calling the police on them cannot be enforced. But Becker found that the NLRB was on firmer ground with its third order that said Snyder’s had engaged in illegal surveillance by calling out the names of its workers as they neared the union organizers. Snyder’s argued that its management was simply trying to direct traffic and keep tempers cool as a long line of cars tried to exit the facility. But Becker said the court was constrained to uphold the administrative law judge’s decision that rejected Snyder’s benign characterization of the events. Snyder’s was represented in the appeal by attorneys Jay R. Fries and Paul M. Lusky of Kruchko & Fries in Washington, D.C. NLRB attorney Jeffrey M. Hirsch argued the case for the government. The United Food and Commercial Workers Union was represented by attorney Laurence M. Goodman of Willig Williams & Davidson of Philadelphia.

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