Union Organizing Case Study

Rule of Law (Kevin Minnick)

Per the National Labor Relations Board (NLRB), (n. d.), employers are not allowed to prevent someone from “…distributing union literature during non-work time, in non-work areas, such as parking lots or break rooms”, except in unusual conditions. In a similar case, LECHMERE, INC. v. NLRB, (1992) No. 90-970, the Judge decided in favor of the union and directed the employer to stop preventing their union from dispensing material in the parking lot. It was confirmed by the board, reliant upon a prior case, Jean Country, 291 N.L.R.B. 11, where the accessibility of practical effective alternate means of exercising their right to solicit was considered inhibited. The Boards decision that the union’s availability to access employees was constrained, Babcock, 351 U.S., at 113, was a misinterpretation of the exception. The union could access employees by other means such as advertising, placing signs on public property, telephoning employees, and visiting them at their place of residence. The union has not established that any "unique obstacles," Sears, 436 U.S., at 205 -206, n. 41, that bar contact with the employees exist; the Board made a mistake in determining that the employer used labor practices that were deemed unfair by obstructing the nonemployee union members from their property. Therefore, by comparison, in the case of United Food and Commercial Workers Union, AFL-CIO vs. World Tea & Coffee, Inc., the NLRB should rule in favor of the employer.

Analysis: ( Marcella Holloway)

The rule is that an employer's non-solicitation policy is presumptively valid if it is limited to prohibiting solicitations during working time. An employer's policy that prohibits solicitation during "working hours," "company time," or "business hours," however, is presumptively unlawful because it implies a prohibition on solicitation from the beginning to the end of a shift or day, including breaks or other non-working time in which employees have a right to solicit. Solicitation and Distribution Policies under the National Labor Relations Act: A Guide to Current Compliance and Anticipated Future Developments N. Hills Office Servs., 346 N.L.R.B. 1099, 1113 (2006) https://www.dechert.com/files/Publication

The National Labor Relations Board has long balanced employers' property rights with union rights under federal labor law in determining whether to allow non-employee, 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. 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. 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 non-employee distribution. Labor Board v. Babcock & Wilcox Co. http://caselaw.findlaw.com/us-supreme-court/351/105.html

The Court reiterated that the 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. United States: NLRB's Continuing Expansion Of Off-Duty Access Rights http://www.mondaq.com

Analysis: Explain whether or not the storeowner may prohibit nonemployee union organizers from distributing leaflets in a shopping mall parking lot owned by the storeowner (Samantha Hang)

In regards to this case between World Tea & Coffee, Inc. and The United Food and Commercial Workers Union, AFL-CIO, the storeowner may prohibit nonemployee union organizers from distributing leaflets in a shopping mall parking lot that is owned by the storeowner. Section 7 of the National Labor Relations Act warrants employees "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," as well as the right "to refrain from any or all such activities” (NLRB, n.d.). In this case, nonemployee union members were continuously placing handbills on car windshields within the employee parking lot. Because the parking lot was not public property and was private property owned by the employer, the union is in violation of soliciting and distributing materials on employer-owned property (NLRB, n.d.). There were no signs that the employer had conducted any discriminatory acts against the union or employees by allowing others to solicit in the parking lot, which would then make the employer in violation of Section 8(a)(1) of the Act (NLRB, n.d.).

Furthermore, according to the case of NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), in which now the U.S. Supreme court and NLRB use as a guideline for balancing employer’s rights and employee’s rights, section 7 of the Act does not protect nonemployee union members except in cases where inaccessibility of employees is ineffective through reasonable attempts of communication, such as reaching employees at their place of residents, advertising in newspapers, on radio stations or television, or reaching employees by phone (Spelfogel, 2001). In regards to this case between World Tea & Coffee, Inc. and The United Food and Commercial Workers Union, AFL-CIO, it notes that the union only had tried one time to access employees through a published advertisement in the local newspaper, which had failed to yield unionization. This attempt of communication would appear to not meet Section 7 standards of conducting reasonable attempts, as well as misapplying Babcock & Wilcox. Just as in the case LECHMERE, INC. v. NLRB, (1992) No. 90-970, the U.S. Supreme Court found that regardless if alternative means of communication deemed effective or not, nonemployee union members were not entitled to be accessing private property or organizational or recognition purposes (Spelfogel, 2001). In conclusion, if the newspaper advertisement in this case deemed ineffective, nonemployee union members should access public sidewalks nearest to World Tea & Coffee, Inc.

References

National Labor Relations Board, (n. d.). Your Rights during Union Organizing. Retrieved from https://www.nlrb.gov/rights-we-protect/whats-law/employees/i-am-not-represented-union/your-rights-during-union-organizing

FindLaw, a Thomson Reuters business., (2017). United States Supreme Court LECHMERE, INC. v. NLRB, (1992) No. 90-970 Argued: November 12, 1991 Decided: January 27, 1992. Retrieved form http://caselaw.findlaw.com/us-supreme-court/502/527.html

Solicitation and Distribution Policies under the National Labor Relations Act: A Guide to Current Compliance and Anticipated Future Developments N. Hills Office Servs. 346 N.L.R.B. 1099, 1113 (2006) https://www.dechert.com/files/Publication

United States: NLRB's Continuing Expansion Of Off-Duty Access Rights Retrieved from http://www.mondaq.com/unitedstates/x/350566/employee+rights+labour+relations/Resource+Update+NLRBs+Continuing+Expansion+of+OffDuty+Access+Rights

Labor Board v Babcock & Wilcox Co. Retrieved from http://caselaw.findlaw.com/us-supreme-court/351/105.html

NLRB. (n.d.). Interfering with employee rights (section 7 and 8(a)(1)). Retrieved from http://www.nlrb.gov/rights-we-protect/whats-law/employers/interfering-employee-rights-section-7-8a1

Spelfogel, E. J. (2001, August 1). Retail industry picketing and hand billing: Access rights of non-employee union representatives, striking, and off-duty employees to shopping malls, parking fields, stores, and other private property. Retrieved from http://www.ebglaw.com/real-estate/news/retail-industry-picketing-and-hand-billing-access-rights-of-non-employee-union-representatives-striking-and-off-duty-employees-to-shopping-malls-parking-fields-stores-and-other-private-property/