Unions Have Right of Access for NLRA Employees After SCOTUS Ruling

July 20, 2021, 8:00 AM

The U.S. Supreme Court’s June 23 decision in Cedar Point Nursery v. Hassid did not change the National Labor Relations Act-protected rights of employees and union representatives to access and engage in protected activity on employer’s property, whenever and wherever such rights exist. Such rights do exist in many situations, and some might be expanded/restored in the future.

The Section 7 rights of employees to carry out such activities (or to refrain from doing so) are central to U.S. national labor relations policy, and maintaining their protection is fundamental to American labor law.

In Cedar Point Nursery, the Supreme Court found invalid a California regulation that authorized union organizers to access agricultural employers’ property. The court ruled 6-3 that granting such access amounted to an “appropriation” of the employers’ property, and that under the takings clause of the U.S. Constitution’s Fifth Amendment, the property access must be for a “public use,” and that the property owner must be justly compensated for this use.

The decision will directly affect access to employer property to communicate with agricultural employees and any other workers who are not covered by the NLRA, such as (and importantly) domestic service workers and independent contractors.

However, based on language in the majority opinion by Chief Justice John Roberts, it seems unlikely that the decision can or should reduce any rights of employees who are protected by the NLRA or the rights of access to employer property for representatives of unions seeking to communicate with such employees and/or other persons.

In a separate concurrence, Justice Brett Kavanaugh might have sought to merge the majority’s holding into federal labor law, but because the majority expressly rejected doing that, and no other justice joined it, lower federal courts and federal agencies should not rely on that concurrence in NLRA cases.

Four Points on NLRA Rights of Access

Below are four takeaways about the rights of access to employer property, in light of Cedar Point Nursery.

First, Cedar Point Nursery did not discuss and should not affect access to property by union representatives that employers consent to in collective bargaining agreements or otherwise. The extent and means of union access to property is an issue over which an employer must bargain at a union’s request. It must remain so in order for a union to be able to “fairly represent” employees, a legal obligation on unions for more than 75 years.

A union cannot represent employees fairly unless its representatives can see and experience in person the conditions under which those employees work, and can have access to anything in the employer’s possession that directly impacts employees’ terms of employment.

Second, the property access rules the Supreme Court has already established in interpreting the NLRA still apply. Consequently, employers cannot deny access to property to union representatives seeking to communicate with “inaccessible” employees like those who live and work on vessels at sea or remote logging or oil drilling camps.

Also acknowledged by past Supreme Court decisions is the “non-discrimination rule” which—as applied by the National Labor Relations Board (NLRB) for 70 years prior to its 2019 Kroger decision—meant that if an employer allowed nonunion outside organizations (e.g. Girl Scouts, the Salvation Army) on its property to solicit and/or to distribute tangible items, the employer had to give union representatives access to the same extent.

The NLRB in its 2019 Kroger decision, after noting federal appeals courts had divided over this rule, decided that when an employer had allowed outside organizations access to engage in solicitation and/or distribution, an employer did not have to permit union representatives on its property to solicit customers to boycott the employer.

Consequently, the scope of the nondiscrimination rule as a basis for accessing property is uncertain. At present, federal appeals courts disagree over the appropriate breadth of the rule. And even the NLRB in Kroger seemed uncertain about its scope

Third, specific rules still apply (or soon might) to union access to property. In California, and any other state that creates a right to access some property for “expressive activities,” even Cedar Point Nursery acknowledged that union representatives still have a state law right of access to engage in organizing or even boycott activity. And if a federal right of access is revived by either the NLRB or any federal courts, union organizers could again access publicly available restaurants or cafeterias to communicate with employees, a right the NLRB also eliminated in 2019.

Fourth, employees have NLRA-protected rights to communicate with co-workers on employer property during non-working time to support a union or to protest employment terms. An employer cannot restrict such access unless the communications impair production or discipline.

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

But that’s another relatively new rule that could be reversed by a future NLRB or 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 at the University of Baltimore School of Law. He previously worked at the Department of Labor as the director of the Office of Labor-Management Standards (OLMS), at that time the only political position in that agency.

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