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 Solicitation See Adtranz, ABB Daimler-Benz Transportation Inc., 331 N.L.R.B. No. 40 (2000) –Employer may bar nonbusiness use of its property or equipment, unless –violations of that policy are tolerated –rule not enforced may not discriminatorily tolerate only nonunion information or enforce rule only against union information Other electronic solicitation issues –Definition of “work area” –Harm to employer through use of system

14 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.