Union acces to organize the workplace vs. an employer's right to control its private property
| Autor | Barry Winograd |
| Cargo | Arbitrator and mediator in Oakland, California, and serves on the adjunct law school faculty at the University of California, Berkeley, and the University of Michigan |
| Páginas | 1-10 |
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For several months in 1987, a retail clerk’s union mounted an unsuccessful campaign to organize about 200 employees at a large non-union retail store specializing in appliances and electronics goods. The store was located in a "strip mall" in the metropolitan area near Hartford, Connecticut. As with strip malls elsewhere, the store shared a rectangular swath of land with more than a dozen smaller retail stores, and was bordered by a busy major boulevard. To contact the store’s employees, the union organizers, who were not employees of the store itself, entered the mall’s parking lot on two occasions to place handbills on cars that belonged to employees. The parking lot was open to the general public to visit or shop at any of the stores. During the entry by union organizers, no traffic was blocked, no customers were bothered, and no business was disrupted.
Responding to the union’s activity in the parking lot, which was owned by the store and the mall’s developer, store representatives told the union’s organizers that they needed to leave because they were on private property. In one instance, the police were summoned. The police instructed the organizers to stay on a narrow grassy strip of public land alongside the boulevard. In asking the union organizers to leave, the store relied on a policy, consistently enforced in the past, prohibiting solicitation of any kind on its property, whether by unions or charitable groups.
Through all of the union’s efforts over the next few months, which included newspaper ads, picket signs held aloft, and tracking down car license plate information, the union acquired the names and addresses of 41 store employees. After multiple mailings and a number of phone calls and personal contacts, only
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one authorization card was signed approving the union as the workplace representative.
On these facts, the United States Supreme Court ruled in Lechmere v. NLRB1that the employer’s property rights and trespass laws were properly invoked to prohibit the union’s access to the parking lot to communicate with employees.
Leading to the Supreme Court’s decision was the union’s claim that the store’s ban on parking lot solicitation interfered with the union’s right to organize under Section 7 of the National Labor Relations Act (NLRA).2The NLRA, passed in 1935 and amended in significant measure in 1947, is the principal statute governing labor relations in the private sector of the United States economy.3Section 7 of the NLRA is the key statement of union and employee organizing rights under federal law, providing, in relevant part, that, "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." Over the years, Section 7 has been interpreted as protecting the right of unions to communicate with employees about the advantages of unionization, and about expressing solidarity with other employees.4This proposition is consistent with longstanding First Amendment preservation of freedom of speech and association for union communications.5
According to the union, as a result of the employer’s action to bar leaflet distribution in the parking lot, the store violated Section 8(a)(1) of the NLRA. Section 8(a)(1) states that it shall be an "unfair labor practice" for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed
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in section 7."6In essence, the union urged that the employer’s insistence on strict enforcement of its property interest in the form of a parking lot access ban created an impermissible obstacle to the union’s organizing attempts.
The National Labor Relations Board, the administrative agency charged with overseeing union and employer rights under the NLRA, agreed with the union, determining that the trespass laws should give way, and that the store violated the NLRA by denying parking lot access to the union. The Board’s decision was enforced at the appellate stage. However, the Supreme Court reversed the Board in a decision with six justices in the majority, and three judges dissenting.
As a starting point, the Court stated that the NLRA confers rights on employees, not on unions or their organizers.7The rights of the latter are, in the Court’s view, derivative, and not equivalent to the primary rights of employees at the work site. While acknowledging that employees can be assisted by unions in deciding whether to unionize, the Court drew a sharp distinction between those who are working on an employer’s property, and those who are not. In doing so, the Court relied on a previous Supreme Court decision from 1956: NLRB v. Babcock & Wilcox Co.8That case also involved a union claim for access rights for non-employees.
The property at issue in Babcock & Wilcox was an isolated factory off a main road, but not far from a small town in which many of the employees lived. As Babcock & Wilcox made clear, and Lechmere confirmed, employees generally are free to communicate with each other about unionization while they are at the workplace.9Such activity preferably takes place during non-work times and in non-work areas such as break rooms, cafeterias, and the like, unless it is demonstrated that a restriction is necessary to maintain production or to protect another valid interest of the employer.10In a passage designed to guide future application of the Court’s
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decision in Babcock & Wilcox, the Court stated that an employer’s right to control its property, and the union’s right to organize under Section 7 of the NLRA, must be subject to "accommodation" with "as little destruction of one as is consistent with the maintenance of the other."11If the Court in Babcock & Wilcox had stopped with that admonition, some of the problems encountered later, in Lechmere, might have been avoided.
However, the majority in Lechmere focused instead on another portion of the Babcock & Wilcox decision; one that permitted the Court to establish a more rigid barrier to non-employee union access to employer property. Hence, as the Court said in Babcock & Wilcox, only when "the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate"12can an employer’s property rights be compromised, and only "to the extent needed to permit communication of information on the right to organize."13
Compounding potential confusion from the tension in these portions of the Babcock & Wilcox ruling, over the next 20 years a shadow was cast on Babcock &...
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