HRER811:

Lesson 3: Employer Property and Employee Rights

Lesson 3: Introduction (1 of 3)
Lesson 3: Introduction

Lesson 3: Introduction

Reading Assignment

  • Lesson 3 Commentary
  • See your Course Schedule for additional details on what to read for this lesson.

 

Objectives

After successfully completing this lesson, you should be able to discuss 

  • To what extent do employees have the right to engage in union activity in the workplace?
  • Do employers have an absolute right to bar non-employee union organizers from entering employer property?
  • In what circumstances may unions lawfully picket or handbill non-union employers?
  • What are lawful employer responses to a union organizing drive?
Employer Property and Employee Rights (2 of 3)
Employer Property and Employee Rights

Employer Property and Employee Rights

Lesson 3 teaches us the following:

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).

Assignments (3 of 3)
Assignments

Activities

  • Complete the Lesson 03 Quiz. (Individual Activity)
  • Complete the Lesson 03 Assignment. (Individual Activity)

    Please respond to each of these sections in the order in which they appear.

    Security Response to Possible Union Activity

    You’re just starting your work day at the Better Biscuits Company (BBC), a nonunion company located on the outskirts of town. Early this morning, you drove to its facilities and parked in front of the BBC complex, which faces the town’s main thoroughfare, Ford Avenue. As you log on to your computer, you get a call from an agitated security guard, who tells you the following:

    About ten people are walking around the parking lot putting leaflets under windshield wipers.Three people are standing on the covered porch entrance to the factory handing leaflets to anyone entering or leaving the building.Someone is standing on the sidewalk in front of the factory, also handling out leaflets.Three people are walking back and forth on Ford Avenue carrying some signs and apparently trying to talk to drivers turning into the parking lot.Two people are standing in a grassy field on the other side of Ford Avenue holding a large banner of some sort.

    The guard says that he’s not been able to get a good look at any of them, but they all seem to be wearing some kind of union jacket. He wants to know what he should do.

    Write an Action Plan

    Formulate an action plan that covers the following:

    Identify and describe the law that governs the facts that you have so far.Based on that law, to what extent does BBC have the right to eject the people described by the guard (or, to ask the police to remove them)?Do you need any additional information? If so, describe it and explain why you need it in light of the applicable law.

    As you sort through the possibilities and options, identify and describe

    the law that will determine what questions you need to ask,the instructions you may give the guard, andthe steps you’ll take depending on the answers to those questions.

    Be sure to provide specific identifying information for the statutes, cases (the name of the case and a citation), and legal principles that you reference.

     

    Manager Response to Possible Union Activity

    A few hours later, Ernesto, the plant manager, bursts into your office to tell you the following:

    Several hourly employees wearing union T-shirts and hats have been walking around the employee lunch room passing out leaflets, talking to other employees, and apparently asking them to sign some kind of card. He watched this activity through the wall of windows between the lunch room and the hallway.Although he watched for quite a while, Ernesto couldn’t get a good look at the leaflets or cards. Nor could he hear what the employees were saying, but it looked like they were trying to promote a union.When some of the employees wearing union T-shirts and hats left the lunch room, he followed them onto the plant floor, where they interrupted employees who were working, passed out leaflets and cards, and put some union stickers on plant equipment.Ernesto offers you a list of the names of the employees passing out the leaflets and cards and of the employees who appeared to be receptive to the material. He also offers to show you the pictures that he took of the lunch room and plant floor activity.Ernesto intends to confiscate the cards and call a mandatory meeting of all hourly employees, where he intends to ask each employee whether they support a union and set them straight if they answer in the affirmative.He intends to order the employees to refrain from passing out any cards, leaflets, or other union literature on company property and to ban union T-shirts and hats.Finally, he wants to discipline any employee who fails to follow his directives. Write an Action Plan

    Formulate an action plan that covers the following:

    Identify and describe the law that governs the facts that you have so far.Based on that law, how would you respond to each element of the plant manager’s proposed plan of action?Is there anything else that you would bring to his attention, either by way of a caution or otherwise?Do you need any additional information to formulate your thoughts? If so, what is it and why do you need it?

    Please provide specific identifying information for the statutes, cases (the name of the case and a citation), and legal principles that you reference.

This is the end of this lesson. Check your Syllabus for the time frame of the next lesson.

 


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