A union’s level of access to remain on-site of a shopping center depends on weighing the employer’s private property rights against employees’ Section 7 rights.
Unfortunately, private property interests may be required to yield to the trespassory activity of non-employee union organizers when the union lacks a reasonable alternative for communicating with employees or when the employer discriminates against the union by allowing similar activity by other non-employees.
One example of this balancing of rights involved striking employees at a restaurant located on the first floor of an office building. Employees picketed and handbilled in the foyer of the restaurant until ordered to leave. The Board ruled the employees’ Section 7 rights outweighed the owner’s property rights opining that the union’s message could be effectively communicated only if the pickets had access to the employer’s property. Additionally, the Board claimed that restaurant customers became identifiable only as they entered the restaurant so access to the restaurant entrance was necessary to reach the intended audience.
For another example of unions trumping private property rights, handbillers were corralled from walking the parking lot and sidewalks of a store to spread their message not to purchase the company’s products. Rather than roam freely, the company tried to limit the handbillers to a corner of the parking lot. According to the National Labor Relations Board, the company unacceptably diluted the effect of the union’s message by attempting to limit the handbilling to specific areas.
The classic example of property owners being forced to allow unions to demonstrate outside their store is when the store owner allows other companies to solicit store patrons for other purposes. If Girl Scouts are allowed to sell cookies, or if the Salvation Army is allowed to ring its Christmas bell, the unions will most likely be allowed to pass out anti-company propaganda on the company’s doorstep.
Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. Austin Legal’s Concierge Legal Services program is relied upon by companies to remain compliant and competitive. If you have employees, you need Concierge Legal Services. You can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.