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NLRB Previews Planned Rule on Union Access to Employer Property (1)

Nov. 8, 2019, 11:18 AMUpdated: Nov. 8, 2019, 3:44 PM

Members of the National Labor Relations Board gave a preview of a forthcoming rule on when and how unions can enter an employer’s property to organize, part of the ambitious slate of regulations from an agency that traditionally makes national policy via individual cases.

The planned Notice of Proposed Rulemaking, which is expected to restrict the current bounds of lawful union access to businesses’ property, will likely be based on principles underlying a series of decisions on property access that the board issued in recent months, according to NLRB member William Emanuel’s presentation Nov. 7 at the American Bar Association’s annual labor and employment law conference.

The proposal will “clearly define the right of an employer to prohibit certain activities on its private property by two different categories,” non-employee union organizers and regular employees. It’s meant to establish clarity in light of the many decisions by courts and the NLRB on this subject, which have produced a complex set of rules that are difficult for unions and businesses to follow, Emanuel said.

The panel discussion also highlighted the sharp divisions between the three Republican-appointed members and lone Democratic member Lauren McFerran. Chairman John F. Ring and Marvin E. Kaplan are the other members.

McFerran said the Board’s recent decisions on employer property access seem arbitrary. Her comments suggested she’ll likely dissent from the forthcoming proposal, if it is published before her term expires in December.

The Republicans on the board are “inventing new categories of behavior” that have never been terms of art within labor law, like “promotional activity,” in order to effectuate a “radical narrowing” of the right to organize and form unions, she said.

Blueprint in Earlier Rulings

The NLRB in June overruled a nearly 40-year-old precedent that allowed non-employee union representatives to access public areas of an employer’s workplace, like a cafeteria, to solicit or promote union membership. The board in June said businesses can prohibit “promotional activity” on their property as long as they don’t discriminate against union activity.

Two months later, the NLRB held that a property owner could lawfully bar off-duty contractors trying to stage a labor protest unless the contractors work “regularly and exclusively” on the property and don’t have a reasonable alternative to communicate their message. Also this year, the board ruled that it was lawful for an employer to call the police to force a union organizer to stop soliciting in its parking lot.

McFerran argued during the conference that there’s no real relationship between the degree of intrusion caused by union activity and the fact that employees may work at a different location for a day or two each week.

The board’s recent decisions on the issue “serve only to curtail who can exercise” the rights granted by the National Labor Relations Act and supported by U.S. Supreme Court precedent, she said.

The other board members disagreed with McFerran that Supreme Court precedent supports her view, as opposed to theirs, although Ring also seemed to suggest that a legal challenge is expected.

Major unions often seek to challenge or appeal significant formal rules and policies issued via case decisions at the NLRB in court. Over the last three decades, the board has only completed two rules that survived judicial challenges.

“We’ll see what the court says,” Ring said at the conclusion of the discussion.

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editors responsible for this story: Terence Hyland at thyland@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com