1 REPUBLIC AVIATION Key Points Balancing of Ees’ rights of self-org with Er’s property rights to maintain discipline and an orderly worksite; a tension Board must address. Finding against no-solicitation and no-distribution rules –workplace and working hours uniquely appropriate for self-organization – freedom of association – on ees’ own time at the workplace Board authority to make inferences on effects on ee rights from proven facts Normal conversation in work area may include discussion of unionization

2 NO SOLICITATION RULES Presumptively invalid outside of retailing if they prohibit solicitation on company property during nonworking time (Republic Aviation) Privileged in retailing - er may prohibit solicitation in selling areas during nonwork time (Montgomery Ward)

3 Legal Work Rules “Using abusive or profane language in the presence of, or directed toward, a supervisor, another employee, a resident,a doctor, a visitor, a member of a resident’s family, or any other person on company property (the premises).” “Harassment of other employees, supervisors and any other individuals in any way. Sexual harassment” is covered by (another rule).” “Verbally, mentally, or physically abusing... a fellow employee or a supervisor under any circumstances. This includes physical and verbal threats.” SOURCE: Martin Luther Memorial Home, 343 N.LR.B. No. 75, 2004

4 Is this work rule, adopted by a security firm, in violation of Section 8(a)(1)? “While on duty you must NOT... fraternize on duty or off duty, date or become overly friendly with the client’s employees or with co-employees.” See Guardsmark LLC, 344 N.L.R.B. No 97, 2005.

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6 BABCOCK AND WILCOX Key Points Sec. 7 refers to the right of self-organization –right does not extend to unions attempting to organize employees; e.g. unions do not have rights under NLRA separate from ee rights –Ees must be inaccessible beyond reasonable union efforts in order for union to be permitted on er’s property

7 Lechmere Distinction between –Employees, who have Section 7 Rights –Nonemployees who do not have Section 7 Rights Unions and organizers Rights of nonemployees derived from rights of employees Balancing principle of Republic Aviation does not apply to nonemployees –Rejection of Board’s attempt to balance in Jean Country –Hudgens not applicable – involved employee activity ees who do not reside on er’s property presumptively “not beyond reach” of reasonable union efforts

8 Board may balance between Impairment of rights to organize And property rights, Per Republic Aviation and Jean Country Accommo- dation Exists, Trespass Not Permitted Yes Did union have Reasonable Access to Employees off Of employer’s Property? No LECHMERE Two-Part Analysis

9 Lechmere Criteria Babcock quote: “... that an employer may validly post his property against nonemployee 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 distribution.” (351 U.S. 105, 112) Lechmere quotes –“... Babcock's holding that an employer need not accommodate nonemployee organizers unless the employees are otherwise inaccessible” (502 U.S. 527, 534) –“Because the employees do not reside on Lechmere's property, they are presumptively not ‘beyond the reach,’... of the union's message” (502 U.S. 527,540) Is Lechmere an application of or an extension of Babcock?

10 Lechmere - Dissent That inaccessibility would warrant union access does not mean other circumstances would not warrant union access Babcock principle of “reasonable” access should be flexible Court fails to defer to admin agency – Jean Country not unreasonable Court should remand to Board for consideration of case under two-part test, not take over Board’s role

11 Lechmere Employer may prohibit nonemployee union organizers from entering upon its property to organize employees provided employees are not otherwise inaccessible

12 Discrimination in Access? Should employer be permitted to permit charitable groups to solicit, but ban unions from soliciting? –Conventional Doctrine: Er may nondiscriminatorily prohibit nonee organizers from entering its property If employer permits non-labor outside (such as charitable) solicitation, it must permit unions to solicit –blend of interference under 8(a)(1) and discrim. under 8(a)(3) –Evolving Doctrine – not illegal discrimination under NLRA to prohibit non-employee solicitation and still permit non-labor (e.g., charitable) solicitation Employer Rights Theory –Separation between labor and nonlabor employer domains »Discrimination defined as favoring one union over another, or allowing employer-related information while barring similar union- related information –Er’s have right to permit charities to solicit on their property See Albertson’s v. NLRB, 301 F. 3 rd 441 (6 th Cir., 2002)

13 ”The judge found, and we agree, that the Respondent unlawfully denied IAPE's requests to meet on the Respondent's property.... He effectively concluded that the Respondent's application of its policy precluding "outside organizations" from the use of its premises constituted unlawful disparate treatment as applied to IAPE, because the Respondent interpreted the same policy to permit meetings on its property for other organizations: for example, a women's group made up of the Respondent's employees and focused on workplace issues of particular interest to women; a minority employees' group also made up of the Respondent's employees and focused on minority-employee workplace issues; a weight- reduction program for employees conducted by an independent organization; and a similarly independently conducted smoke-ending program for employees. The judge found that the Respondent could not permit this array of employee activities and meetings at its facilities and at the same time lawfully deny the same kind of access to IAPE, an organization not only existing for the purpose of representing the Respondent's employees on matters of terms and conditions of employment, but also made up entirely of the Respondent's employees. The judge also properly concluded that the Respondent's particular interpretation of its policy--that an "outside organization" must have a "Dow Jones business-related purpose" to gain access to its meeting facilities--did not coherently and objectively distinguish between the activities permitted and the union activity denied.” (Dow Jones And Company, Inc, 318 NLRB 574, , 1995).

14 “ To discriminate in the enforcement of a no-solicitation policy cannot mean that an employer commits an unfair labor practice if it allows the Girl Scouts to sell cookies, but is shielded from the effect of the Act if it prohibits them from doing so..... Although the Court has never clarified the meaning of the term, and we have found no published court of appeals cases addressing the significance of "discrimination" in this context, we hold that the term "discrimination" as used in Babcock means favoring one union over another, or allowing employer-related information while barring similar union-related information.... Although we are respectful of the Board's interpretation, we are not compelled to follow it when it rests on erroneous legal foundations.... No relevant labor policies are advanced by requiring employers to prohibit charitable solicitations in order to preserve the right to exclude nonemployee distribution of union literature when access to the target audience is otherwise available. The purpose of section 8(a)(1) is to prevent employers from interfering with employees' exercise of section 7 rights. An owner of private commercial property who permits a charitable organization to distribute information or conduct solicitations on its property simply does not implicate the policies of the NLRA and does not, without more, render an employer guilty of an unfair labor practice when later it chooses to follow the general rule of "validly post[ing its] property against nonemployee distribution of union literature."Cleveland Real Estate Partners, NLRB, 95 F.3d 457, 65 USLW 2217, 153 L.R.R.M. (BNA) 2285, 6 th Cir )

15 GENERAL PRINCIPLE: Employees have the right to engage in self-organization, including obtaining information about unions. Generally, unions do not have the right to enter the employer’s property, because the employee right is one of self- organization. Therefore the employer may generally prohibit a union that is organizing from entering the employer’s property if the union is able to reach employees through “reasonable efforts.” But employer may not discriminate in access to its property. Labor Lens/Motivation Framework – Conventional View Why would the employer wish to keep the union off the property? Assuming that the employer is not prohibiting a union from entering the property to deprive employees of pro-union information, it must be that permitting an outsider union on the property is disruptive to the orderly operation of the business. Thus, if the employer permits other outsiders on the property, but not unions, it suggests that the true motive for the prohibition is not avoidance of business disruption, but rather depriving employees of information useful to self-organization. Management Rights/Property Rights Framework/Business Decisions – Evolving View An employer may permit outside solicitation because it wishes to do so (perhaps because it wishes to cultivate goodwill in the community). Such permission is a business matter unrelated to the employer’s labor policies and practices. On the other hand, if the employer permits solicitation by one union but not another union, or uses outside organization solicitation to support matters related to employment, then it can be presumed that the employer’s intent is to discriminate against the union, because the employer is using its premises for outside organizations to solicit on employment-related matters.

Lechmere “Exception” An employer may not prohibit non- employee unionists from entering property if state law permits such “outsiders” on the property –Employer has no property interest it can assert –Example: California mall owner may not prohibit union representatives from handbilling on its premises (Glendale Assoc. v. NLRB, 347 F3d 1145, 173 LRRM 2551, 9 th Cir., 2003; see also Carpenters Local 848 v. NLRB (Macerich Mgt. Co.) 184 LRRM 3025, 9 th Cir., 2008) 16

17 Excelsior List Employer must provide to Board names and addresses of employees when union has made a showing of substantial interest and the Board has scheduled an election: Excelsior Underwear Inc., 156 N.L.R.B (1966), NLRB v. Wyman-Gordon, Inc. 394 U.S. 759 (1969). List made available to union.