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Lesson 3: Employer Property and Employee Rights

Employer Property and Employee Rights

Lesson 3 teaches us the following:

  • Employees who are covered by the NLRA—in both union and nonunion establishments—are generally entitled to engage in union activity during nonworking time in nonworking areas, unless the employer can show that a ban is required to maintain discipline or production.
  • Employers are generally entitled to bar nonemployee union organizers absent discriminatory nonsolicitation policies or unusual circumstances regarding employee accessibility.

In this lesson, we’ll explore the tension in this area of the law, which reflects an attempt to balance employees’ Section 7 rights and employer property rights under state and local laws.

Please note that labor laws have had some new developments since our textbook was published. As previously noted, because NLRB "Board" members are appointed by the incumbent president, their decisions, rules, and procedures can abruptly change the lay of the land based on the politics of the times. We have two such changes to discuss this week.
 

Section 7 and Nonemployee Access

As the textbook reading indicates, in NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956) and Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), the Supreme Court limited the scope of employees’ right to hear from nonemployee union organizers in the workplace. Pursuant to these Supreme Court rulings, there are two main exceptions to the employer’s right to bar nonemployee union organizers: (a) unusual workplaces, such as logging camps, where employees cannot reasonably be reached by other means, and (b) workplaces where the employer has applied its nonsolicitation policy in a discriminatory manner.

The NLRB under the Trump administration significantly expanded the employer’s rights in this area by changing the definition of discrimination. In Kroger Limited Partnership I Mid-Atlantic (2019) the Board ruled as follows:

Under the standard we adopt today, to establish . . . a denial of access to nonemployee union agents . . . the General Counsel must prove that an employer denied access to nonemployee union agents while allowing access to other nonemployees for activities similar in nature to those in which the union agents sought to engage. Consistent with this standard, an employer may deny access to nonemployees seeking to engage in protest activities on its property while allowing nonemployee access for a wide range of charitable, civic, and commercial activities that are not similar in nature to protest activities. Additionally, an employer may ban nonemployee access for union organizational activities if it also bans comparable organizational activities by groups other than unions. (p. 2)

Section 7 and Employer Email

The Board has also changed the law related to employer email. As our textbook discusses, in Purple Communications, Inc. (2014), the Board held that "employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems" (p. 1).

But that case has been overruled. In Caesars Entertainment Corp. d/b/a Rio All-Suites Hotel and Casino (2019), the Board held that, with two exceptions, "employees have no statutory right to use employer equipment, including IT resources, for Section 7 purposes” (p. 1). One exception is the rare instance "where an employer’s email system furnishes the only reasonable means for employees to communicate with one another" (Caesars, 2019, p. 1). The other exception is where the employer’s email access rules are not "facially neutral" or where they are "applied discriminatorily" (Caesars, 2019, p. 12).

References

Caesars Entertainment Corp. d/b/a Rio All-Suites Hotel and Casino, 368 N.L.R.B. 143 (2019).

Kroger Limited Partnership I Mid-Atlantic, 368 N.L.R.B. 64 (2019).

Purple Communications, Inc., 361 N.L.R.B. 126 (2014).


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