NLRB's Continuing Expansion Of Off-Duty Access Rights

In deciding whether to allow union organizers access to work sites, the National Labor Relations Board has long balanced employers' property rights with union rights under federal labor law. In this BNA Insights article, management attorneys Adam Dougherty and Jacquelyn Thompson of FordHarrison review the history of off-duty access and the development of board decisions that they say have tipped this balancing test toward employees. Until either the appellate courts or the board starts to give more weight to employers' private property rights, it will be very difficult for employers to prohibit off-duty access, the authors conclude. It appears that if employers want an off-duty access policy in the current labor law climate, they should either ban reentry for all purposes or allow unfettered access, they say.

The National Labor Relations Board has long balanced employers' property rights with union rights under federal labor law in determining whether to allow union organizers access to work sites. The case law has developed over the last 60 years with the U.S. Supreme Court limiting access, and then the board gradually expanding it.

Recent decisions from the NLRB have reinforced the notion that the board continuously gives more weight to employees' access rights than to employers' property rights. This article reviews the history of off-duty access and the development of board decisions that have tipped this balancing test toward employees.

HISTORY

The National Labor Relations Act defines the rights of employees to organize and to bargain collectively with their employers through representatives of their own choosing.1 The rights of employees are principally set forth in Section 7 of the NLRA, which states that employees shall have the right ''. . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .''

Section 8(a)(1) of the NLRA creates a broad prohibition on employer interference with its employees' union rights. The act forbids an employer ''to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.'' Any prohibited interference by an employer with the rights of employees to organize, to form, join, or assist a labor organization, to bargain collectively, to engage in other concerted activities for mutual aid or protection, or to refrain from any or all of these activities, constitutes a violation of this section.

In recent years, employers increasingly have been found to violate Section 8(a)(1) by attempting to limit employees' off-duty access to work areas.

Def‌ining Workspace.

The U.S. Supreme Court long ago ruled that employees could organize on an employer's property while on non-work time, subject to certain limitations. In Republic Aviation Corp. v. NLRB, 324 U.S. 793, 16 LRRM 620 (1945), the Court weighed the employer's management rights and the need to maintain order and discipline in the workplace against the employees' rights under the act. The Court held that when an employee is not on work time, his time is his own, and he can engage in union solicitation activity even though he is on the employer's property.

Applying Republic Aviation, the board limited the right to hand out union literature in work areas to prevent the hazard to production from potential littering of the premises.2 However, the board made a distinction between distribution of literature and oral solicitation, the latter of which does not create the hazard associated with handing out pamphlets. Thus, employers could limit an employee's distribution of literature to non-work areas. Through subsequent decisions, the board continued to refine employee and union access rights on an employer's property, ushering in an era during which the board increasingly allowed employees access to distribute union information at the work site.

Limitations on Access for Non-Employees.

A decade after its landmark decision in Republic Aviation, the U.S. Supreme Court again addressed off-duty access, holding that the scope of Section 7 rights depends on one's status as an employee or non-employee.

In a unanimous decision, the Court severely limited non-employees' off-duty access. In NLRB v. Babcock & Wilcox Co., 351 U.S. 105 38 LRRM 2001 (1956), non-employee union organizers were distributing union literature on employer-owned parking lots. The Court overturned the board, finding that the refusal of the employers to permit distribution of union literature by non-employee union organizers on company-owned parking lots did not unreasonably impede their employees' right to self-organization.

The Court reasoned that the locations of both the working and living areas of the employees did not place the employees beyond the reach of reasonable efforts of the unions to communicate with them by other means. The Court acknowledged that non-employee union organizers had a ''derivative'' right to discuss unionization with employees but that right is not expressly protected by the act. However, an employee's direct right to discuss unionization is superior to this derivative right of non-employees.

Thus, according to the Court, an employer may validly protect his property against non-employee distribution of union literature if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message and if the employer's notice or order does not discriminate against the union by allowing other nonemployee distribution.

The Court reiterated that ''[t]he Act requires only that the employer refrain from interference, discrimination, restraint or coercion in the employees' exercise of their own rights. It does not require that the employer permit the use of its facilities for organization when other means are readily available.''

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