407 U.S. 539
92 S.Ct. 2238
33 L.Ed.2d 122
CENTRAL HARDWARE COMPANY, Petitioner,v.NATIONAL LABOR RELATIONS BOARD et al.
No. 70—223.
Argued April 18, 1972.
Decided June 22, 1972.
 
      Syllabus
 
      Petitioner had a rule against solicitational activities in
 its stores and parking lots. The parking lots are appurtenant to
 petitioner's free-standing stores and do not serve other retail
 establishments. Union organizers used petitioner's parking lots to
 solicit petitioner's employees to join the union, and petitioner
 ordered the organizers off its property. The union filed unfair
 labor practice charges against petitioner. The National Labor
 Relations Board (NLRB) held that enforcement of petitioner's
 no-solicitation rule, which it found was overly broad, violated §
 8(a)(1) of the National Labor Relations Act, which proscribes
 interference with employees' § 7 organizational rights. The NLRB
 concluded that the character and use of the lots distinguished the
 case from N.L.R.B. v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct.
 679, 100 L.Ed. 975, which required a 'yielding' of the employer's
 property rights in the context of an organizational campaign only
 'when the inaccessibility of employees makes ineffective the
 reasonable attempts by nonemployees to communicate with them
 through the usual channels . . .. Id., at 112, 76 S.Ct., at 684.
 Instead, the NLRB held applicable Amalgamated Food Employees v.
 Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603,
 where peaceful picketing by union agents on a parking lot within a
 shopping center was held, under the circumstances existing, to be
 within the protection of the First Amendment. The Court of
 Appeals, agreeing, ordered enforcement of the NLRB's order. Held:
 Logan Valley, decided on constitutional grounds, is not applicable
 to this § 7 case, which the Court of Appeals should now reconsider
 in the light of Babcock. Pp. 542—548.
 
      439 F.2d 1321, vacated and remanded.
 
      Ronald L. Aylward, Keith E. Mattern, St. Louis, Mo., for
 petitioner.

1
Page 540
 
      Norton J. Come, Washington, D.C., for respondent, N.L.R.B.
 
      Bernard Dunau, Washington, D.C., for respondent Retail
 Clerk's Union 725, Retail Clerks International, AFL—CIO.
 
 djQ  Mr. Justice POWELL delivered the opinion of the Court.
 
      Petitioner, Central Hardware Co. (Central), owns and operates
 two retail hardware stores in Indianapolis, Indiana. Each store is
 housed in a large building, containing 70,000 square feet of floor
 space, and housing no other retail establishments. The stores are
 surrounded on three sides by ample parking facilities,
 accommodating approximately 350 automobiles. The parking lots are
 owned by Central, and are maintained solely for the use of
 Central's customers and employees. While there are other retail
 establishments in the vicinity of Central's stores, these
 establishments are not a part of a shopping center complex, and
 they maintain their own separate parking lots.
 
      Approximately a week before Central opened its stores, the
 Retail Clerks Union, Local 725, Retail Clerks International
 Association, AFL—CIO (the Union), began an organization campaign
 at both stores. The campaign consisted primarily of solicitation
 by nonemployee Union


2
Page 541
 
 organizers on Central's parking lots. The nonemployee organizers
 confronted Central's employees in the parking lots and sought to
 persuade them to sign cards authorizing the Union to represent
 them in an appropriate bargaining unit. As a part of the
 organization campaign, an 'undercover agent for the Union' was
 infiltrated into the employ of Central, receiving full-time salary
 from both the Union and the company. This agent solicited
 employees to join the Union, and obtained a list of the employees
 of the two stores which was about 80% complete.
 
      Central had a no-solicitation rule which it enforced against
 all solicitational activities in its stores and on its parking
 lots. A number of employees complained to Central's local
 management that they were being harassed by the organizers, and
 these complaints were forwarded to Central's corporate
 headquarters in St. Louis, Missouri. The St. Louis officials
 directed the Indianapolis management to enforce the nonemployee
 no-solicitation rule and keep all Union organizers off the company
 premises, including the parking lots. Although most of the
 nonemployee Union organizers had either left Indianapolis or
 ceased work on the Central organization campaign, the Indianapolis
 management had occasion to assert the nonemployee no-solicitation
 rule on several occasions.
 
      One arrest was made when a field organizer for the Union was
 confronted by the manager of one of the stores on its parking lot,
 and refused to leave after being requested to do so. The field
 organizer asserted that he was a 'customer' and insisted upon
 entering the store. The police were called, and when the organizer
 persisted in his refusal to leave, he was arrested.
 
      Shortly after Central received complaints from its employees
 as to harassment by the organizers, Central filed unfair labor
 practice charges against the Union. The


3
Page 542
 
 Union subsequently filed unfair labor practice charges against
 Central. After an investigation, the General Counsel of the
 National Labor Relations Board (the Board) dismissed Central's
 charges against the Union, and issued a complaint against Central
 on the Union's charges.
 
      The Board held that Central's nonemployee no-solicitation
 rule was overly broad, and that its enforcement violated § 8(a)(1)
 of the National Labor Relations Act. The Board reasoned that the
 character and use of Central's parking lots distinguished the case
 from N.L.R.B. v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679,
 100 L.Ed. 975 (1956), and brought it within the principle of
 Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza,
 Inc., 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968). 181
 N.L.R.B. 491 (1970). A divided Court of Appeals for the Eighth
 Circuit agreed, and ordered enforcement of the Board's order
 enjoining Central from enforcing any rule prohibiting nonemployee
 Union organizers from using its parking lots to solicit employees
 on behalf of the Union. 439 F.2d 1321 (1971). We granted
 certiorari to consider whether the principle of Logan Valley is
 applicable to this case. 404 U.S. 1014, 92 S.Ct. 669, 30 L.Ed.2d
 661 (1972). We conclude that it is not.
 
                               I
 
      Section 7 of the National Labor Relations Act, as amended, 61
 Stat. 140, 29 U.S.C. § 157, guarantees to employees the right to
 'selforganization, to form, join, or assist labor organizations.'
 This guarantee includes both the right of union officials to
 discuss organization with employees, and the right of employees to
 discuss organization among themselves.1 Section 8(a)(1) of the
 Act, 29 U.S.C. § 158(a)(1), makes it an unfair labor practice for
 an employer 'to interfere with, restrain, or coerce employees in
 the exercise of the rights guaran-


4
Page 543
 
 teed' in § 7. But organization rights are not viable in a vacuum;
 their effectiveness depends in some measure on the ability of
 employees to learn the advantages and disadvantages of
 organization from others. Early in the history of the
 administration of the Act the Board recognized the importance of
 freedom of communication to the free exercise of organization
 rights. See Peyton Packing Co., 49 N.L.R.B. 828 (1943), enforced,
 142 F.2d 1009 (C.A.5), cert. denied, 323 U.S. 730, 65 S.Ct. 66, 89
 L.Ed. 585 (1944).
 
      In seeking to provide information essential to the free
 exercise of organization rights, union organizers have often
 engaged in conduct inconsistent with traditional notions of
 private property rights. The Board and the courts have the duty to
 resolve conflicts between organization rights and property rights,
 and to seek a proper accommodation between the two. This Court
 addressed the conflict which often arises between organization
 rights and property rights in N.L.R.B. v. Babcock & Wilcox Co.,
 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956). The Babcock &
 Wilcox Co. operated a manufacturing plant on a 100-acre tract
 about one mile from a community of 21,000 people. The plant
 buildings were enclosed within a fence, employee access being
 through several gates. Approximately 90% of the employees drove to
 work in private cars, and the company maintained a parking lot for
 the employees. Only employees and deliverymen normally used the
 parking lot. The company had a rule forbidding the distribution of
 literature on company property. The Board found that the company's
 parking lot and the walkway leading from it to the plant entrance
 were the only 'safe and practicable' places in the vicinity of the
 plant for distribution of union literature, and held the company
 guilty of an unfair labor practice for enforcing the
 no-distribution rule and thereby denying union organizers limited
 access to company property. The Board ordered the com-


5
Page 544
 
 pany to rescind its no-distribution rule insofar as it related to
 nonemployee union representatives seeking to distribute union
 literature on the parking lot and walkway area.2
 
      The Court of Appeals for the Fifth Circuit refused
 enforcement of the Board's order on the ground that the Act did
 not authorize the Board to impose a servitude on an employer's
 property where no employee was involved.3 This Court affirmed on
 the ground that the availability of alternative channels of
 communication made the intrusion on the employer's property rights
 ordered by the Board unwarranted. The Court in Babcock stated the
 guiding principle for adjusting conflicts between § 7 rights and
 property rights:
 
      'Organization rights are granted to workers by the same
      authority, the National Government, that preserves property
      rights. Accommodation between the two must be obtained with
      as little destruction of one as is consistent with the
      maintenance of the other. The employer may not affirmatively
      interfere with organization; the union may not always insist
      that the employer aid organization. But when the
      inaccessibility of employees makes ineffective the reasonable
      attempts by nonemployees to communicate with them through the
      usual channels, the right to exclude from property has been
      required to yield to the extent needed to permit
      communication of information on the right to organize.' 351
      U.S., at 112, 76 S.Ct., at 684.
 
      The principle of Babcock is limited to this accommodation
 between organization rights and property rights. This principle
 requires a 'yielding' of property rights only in the context of an
 organization cam-


6
Page 545
 
 paign. Moreover, the allowed intrusion on property rights is
 limited to that necessary to facilitate the exercise of employees'
 § 7 rights. After the requisite need for access to the employer's
 property has been shown, the access is limited to (i) union
 organizers; (ii) prescribed nonworking areas of the employer's
 premises; and (iii) the duration of organization activity. In
 short, the principle of accommodation announced in Babcock is
 limited to labor organization campaigns, and the 'yielding' of
 property rights it may require is both temporary and minimal.
 
                              II
 
      The principle applied in Amalgamated Food Employees Union
 Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S.Ct.
 1601, 20 L.Ed.2d 603 (1968), is quite different. While it is true
 that Logan Valley involved labor picketing, the decision rests on
 constitutional grounds; it is not a § 7 case.
 
      Logan Valley had its genesis in Marsh v. Alabama, 326 U.S.
 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946). Marsh involved a 'company
 town,' an economic anachronism rarely encountered today. The town
 was wholly owned by the Gulf Shipbuilding Corp., yet it had all of
 the characteristics of any other American town. Gulf Shipbuilding
 held title to all the land in the town, including that covered by
 streets and sidewalks. Gulf Shipbuilding also provided municipal
 services, such as sewerage service and police protection, to the
 residents of the town. A Jehovah's Witness undertook to distribute
 religious literature on a sidewalk near the post office in the
 'business block' of the town, and was arrested on a trespassing
 charge. She was subsequently convicted of the crime of
 trespassing, and the Alabama courts upheld the conviction on
 appeal. This Court reversed, holding that Alabama could not permit
 a corporation to assume the functions of a municipal government
 and at the same


7
Page 546
 
 time deny First Amendment rights through the application of the
 State's criminal trespass law.
 
      In Logan Valley, over a strong dissent by Mr. Justice Black,
 the author of Marsh, the Court applied the reasoning of Marsh to a
 modern economic phenomenon, the shopping center complex. The Logan
 Valley Mall was a complex of retail establishments, which the
 Court regarded under the factual circumstances as the functional
 equivalent of the 'community business block' of the company town
 in Marsh. The corporate owner of Logan Valley Mall obtained a
 state court injunction against peaceful picketing on the shopping
 center property, and the Pennsylvania Supreme Court affirmed the
 issuance of the injunction on the ground that the picketing
 constituted a trespass on private property. This Court reversed,
 holding that Pennsylvania could not 'delegate the power, through
 the use of its trespass laws, wholly to exclude those members of
 the public wishing to exercise their First Amendment rights on the
 premises in a manner and for a purpose generally consonant with
 the use to which the property is actually put.' 391 U.S., at 319
 320, 88 S.Ct., at 1609.
 
                              III
 
      The Board and the Court of Appeals held that Logan Valley
 rather than Babcock controlled this case. The Board asserts that
 the distinguishing feature between these two cases is that in
 Logan Valley the owner had 'diluted his property interest by
 opening his property to the general public for his own economic
 advantage.'4 The emphasis, both in the argument on behalf of the
 Board and in the opinion below, is on the opening of the property
 'to the general public.'5


8
Page 547
 
      This analysis misconceives the rational of Logan Valley.6
 Logan Valley involved a large commercial shopping center which the
 Court found had displaced, in certain relevant respects, the
 functions of the normal municipal 'business block.' First and
 Fourteenth Amendment free-speech rights were deemed infringed
 under the facts of that case when the property owner invoked the
 trespass laws of the State against the pickets.
 
      Before an owner of private property can be subjected to the
 commands of the First and Fourteenth Amendments the privately
 owned property must assume to some significant degree the
 functional attributes of public property devoted to public use.
 The First and Fourteenth Amendments are limitations on state
 action, not on action by the owner of private property used only
 for private purposes. The only fact relied upon for the argument
 that Central's parking lots have acquired the characteristics of a
 public municipal facility is that they are 'open to the public.'
 Such an argument could be made with respect to almost every retail
 and service establishment in the country, regardless of size or
 location. To accept it would cut Logan Valley entirely away from
 its roots in Marsh. It would also constitute an unwarranted
 infringement of long-settled rights of private property protected
 by the Fifth and Fourteenth Amendments. We hold that the Board and
 the Court of Appeals erred in applying Logan Valley to this case.
 
      The Trial Examiner concluded that no reasonable means of
 communication with employees were available to the nonemployee
 Union organizers other than solicitation in Central's parking
 lots. The Board adopted this conclusion. Central vigorously
 contends that this


9
Page 548
 
 conclusion is not supported by substantial evidence in the record
 as a whole. The Court of Appeals did not consider this contention,
 because it viewed Logan Valley as controlling rather than Babcock.
 The determination whether on the record as a whole there is
 substantial evidence to support agency findings is a matter
 entrusted primarily to the courts of appeals. Universal Camera
 Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456
 (1951). Since the Court of Appeals has not yet considered this
 question in light of the principles of NLRB v. Babcock & Wilcox
 Co., supra, the judgment is vacated, and the case will be remanded
 to that court for such consideration.
 
      It is so ordered.
 
      Judgment vacated and case remanded.
 
 djQ  Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS and Mr.
 Justice BRENNAN join, dissenting.
 
      I agree with the Court that this case should have been
 considered under N.L.R.B. v. Babcock & Wilcox Co., 351 U.S. 105,
 76 S.Ct. 679, 100 L.Ed. 975 (1956). That case is, as the opinion
 of the Court suggests, narrower than Amalgamated Food Employees
 Union v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S.Ct. 1601, 20
 L.Ed.2d 603 (1968). It does not purport to interpret the National
 Labor Relations Act (NLRA) so as to give union members the same
 comprehensive rights to free expression on the private property of
 an employer that the First Amendment gives to all citizens on
 private property that is the functional equivalent of a public
 business district. But Babcock is, in another sense, even broader
 than Logan Valley. It holds that where a union has no other means
 at its disposal to communicate with employees other than to use
 the employer's property, or where the union is denied the access
 to employees that the employer gives anti-union forces, the union
 may communicate with employees on the property of the employer.
 Congress gave unions this right in Section 7


10
Page 549
 
 of the NLRA, 61 Stat. 140, 29 U.S.C. § 157. The First Amendment
 gives no such broad right to use private property to ordinary
 citizens.
 
      The National Labor Relations Board found that petitioner
 permitted anti-union solicitation on its premises at the same time
 that it barred union solicitation. 181 N.L.R.B. 491 (1970). It
 made no explicit finding as to whether access to the employees was
 reasonably available to the union outside of the petitioner's
 property, but suggested that it was not. Rather than deciding the
 case under Babcock, supra, which would appear to control and to
 provide that the union activity in the case is protected by the
 NLRA, the Board appears to have decided the case under Logan
 Valley, supra. The United States Court of Appeals for the Eighth
 Circuit affirmed on the basis of Logan Valley and found it
 unnecessary to review the Board's finding of discrimination by the
 employer against the union in the use of its property or to remand
 the case for a determination of whether it was necessary for the
 union to use petitioner's property to communicate with the
 employees. 439 F.2d 1321 (1971).
 
      It is obvious, then, that neither the Board nor the Court of
 Appeals has fully considered whether the employer's conduct was
 proscribed by Babcock even though the indications in the Board's
 opinion are that it was. In reaching out to decide this case under
 Logan Valley, the agency and the lower court decided a difficult
 constitutional issue that might well have been avoided by deciding
 the case under the NLRA. This was error. The principle is well
 established that decisions on constitutional questions should not
 be reached unnecessarily. See, e.g., Dandridge v. Williams, 397
 U.S. 471, 476, 90 S.Ct. 1153, 1157, 25 L.Ed.2d 491 (1970);
 Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000
 (1963).


11
Page 550
 
      Since both the agency and the Court of Appeals should have
 first decided whether or not Babcock controlled the instant case
 before proceeding to decide it under Logan Valley, before this
 Court decides whether or not the decision below was correct under
 the Constitution, we should remand the case to the Board, rather
 than to the Court of Appeals, for a square holding as to the
 applicability of Babcock to the facts of this case. Mr. Justice
 White has recently re-emphasized the point that when an agency
 decides a case under an incorrect legal approach, courts should
 not seek to predict whether the agency would have decided the case
 the same way under the correct approach, but should instead remand
 the case to the agency for further proceedings. FTC v. Sperry &
 Hutchinson Co., 405 U.S. 233, 249, 92 S.Ct. 898, 908, 31 L.Ed.2d
 170 (1972). See also Burlington Truck Lines v. United States, 371
 U.S. 156, 168, 83 S.Ct. 239, 245, 9 L.Ed.2d 207 (1962).
 
      Accordingly, I would remand this case to the Board for
 further proceedings without deciding the constitutional question.



1
 See Thomas v. Collins, 323 U.S. 516, 533—534, 65 S.Ct.
 315, 324—325, 89 L.Ed. 430 (1945).


2
 Babcock & Wilcox Co., 109 N.L.R.B. 485, 486 (1954).3 NLRB v. Babcock & Wilcox Co., 222 F.2d 316 (CA5 1955).


4
 Brief for the NLRB 20.5 439 F.2d, at 1326—1328.


6
 For a full discussion of Logan Valley and the
 circumstances in which it is applicable, see the decision of the
 Court today in Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219,
 33 L.Ed.2d 131.


