Unions have right of access for NLRA employees after SCOTUS decision

The United States Supreme Court’s decision of June 23 in Cedar Point Nursery v. Hasid has not changed the rights protected by the national labor relations law of employees and union representatives to access and engage in protected activities on the property of the employer, whenever such rights exist . Such rights exist in many situations, and some could be extended / restored in the future.

The Section 7 rights of employees to conduct such activities (or to refrain from doing so) are at the heart of U.S. national labor relations policy, and their continued protection is fundamental to the American labor law.

In Cedar Point Nursery, the Supreme Court declared invalid a California regulation allowing union organizers to access the property of agricultural employers. The court ruled 6-3 that granting such access amounted to an “appropriation” of property from the employer, and that under the Fifth Amendment Levies Clause of the United States Constitution- United, access to property must be for “public use” and the owner must be fairly compensated for that use.

The decision will directly affect the employer’s access to property to communicate with farm workers and all other workers who are not covered by the NLRA, such as (and most importantly) domestic workers and independent contractors.

However, based on the wording of Chief Justice John Roberts’ majority opinion, it seems unlikely that the decision could or should reduce employee rights protected by the NLRA or the property access rights of the employer for union representatives seeking to communicate with these employees and / or others.

In a separate agreement, Judge Brett Kavanaugh could have sought to merge the majority position in federal labor law, but because the majority expressly rejected that decision and no other judge joined him, the courts Lower federal and federal agencies should not rely on this agreement for NLRA cases.

Four Points About NLRA Access Rights

Below are four takeaways from employer’s home ownership rights, in light of Cedar Point Nursery.

First, Cedar Point Nursery has not discussed and should not affect the access to property of union representatives to which employers consent in collective agreements or otherwise. The extent and means of union ownership of property is an issue an employer must negotiate at the behest of a union. It must remain so so that a union can “fairly represent” employees, a legal obligation for unions for over 75 years.

A union cannot represent employees fairly unless its representatives can see and experience in person the conditions under which these employees work and have access to everything in the possession of the employer that has a direct impact on the conditions. employment of employees.

Second, the home ownership rules that the Supreme Court already established in the interpretation of the NLRA still apply. Therefore, employers cannot deny access to property to union representatives seeking to communicate with “unreachable” employees such as those who live and work on ships at sea or in logging or oil drilling camps at sea. distance.

The “non-discrimination rule” which, as enforced by the National Labor Relations Board (NLRB) for 70 years prior to its 2019 date, has also been recognized by previous Supreme Court rulings. Kroger decision – meant that if an employer allowed outside non-union organizations (e.g. Girl Scouts, Salvation Army) on their property to solicit and / or distribute tangible items, the employer had to give union representatives access to the same measurement.

The NLRB in its 2019 Kroger decision, after noting that federal appeals courts were divided on this rule, ruled that when an employer allowed outside organizations to access the solicitation and / or distribution , an employer did not have to allow union representatives on their property. solicit clients to boycott the employer.

Therefore, the scope of the rule of non-discrimination as a basis for home ownership is uncertain. At present, federal courts of appeal disagree on the appropriate scope of the rule. And even the NLRB in Kroger seemed uncertain of its scope

Third, specific rules still apply (or may soon) apply to union access to property. In California, and in any other state that creates a right of access to certain goods for “expressive activities”, even Cedar Point Nursery recognized that union representatives still have a right of access under state law to participate in organizing or even boycott activities. And if a federal right of access is reinstated by the NLRB or any federal court, union organizers could once again gain access to publicly accessible restaurants or cafeterias to communicate with employees, a right the NLRB also removed in 2019.

Fourth, employees have NLRA-protected rights to communicate with co-workers on employer property during off hours to support a union or to protest terms of employment. An employer cannot restrict this access unless the communications interfere with production or discipline.

The NLRB has applied this rule, at least to non-work areas that are outside or “incidental” to employee work, to employees engaging in activities protected by Section 7 during off-duty hours and / or ” off-site ”places where the employee does not work but where his employer operates. The NLRB, again in 2019, removed this right from employees of subcontractors, even in the place where they regularly work.

But this is another relatively new rule that could be overturned by a future NLRB or a court.

This column does not necessarily reflect the opinion of the Bureau of National Affairs, Inc. or its owners.

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Michael hayes is an Associate Professor in the University of Baltimore School of Law. He previously worked at the Ministry of Labor as Director of the Office of Labor-Management Standards (OLMS), at the time the only political post in that agency.