Union Members Allowed to Protest on Property Not Belonging to their Employer

Musicians should have been allowed to stand on private property while they protested a ballet company’ use of recorded music inside a performing arts center. This decision shows that the right of employees to engage in peaceful and non-disruptive labor activities may trump the interest of an employer to control access to its private property.

The company said the musicians could not hand out leaflets on sidewalks outside the building where they normally play music.

The Tobin Center leases performance space to the San Antonio Symphony, San Antonio Ballet, San Antonio Opera. AFM Local 23 has a collective bargaining agreement with the symphony. Union musicians perform live music for some, but not all, of the ballet company’s performances.

The ballet group was scheduled to perform Tchaikovsky’s “Sleeping Beauty” with recorded music. Union members stood on a sidewalk near the auditorium entrance and handed out leaflets before the performance urging the public to demand live music. “You’ve paid full price for half of the product,” Local 23 argued in the leaflets.

Tobin Center staff told the union members they had to leave the center’s private property. The Local 23 members moved across a handed out several hundred leaflets to arriving spectators. The union filed an unfair labor practice charge alleging the center violated the National Labor Relations Act by expelling them from the front of the auditorium.

The musicians were not employees of the Tobin Center, the ALJ said, but they regularly worked in the performance arts center and barring their leafleting violated the NLRA.

There was no evidence of overcrowding or disruption at the Tobin Center, and no support for the center’s argument that if it is a “soft target” for terrorists, the ALJ said. The musicians were not carrying backpacks that might conceal explosives, and sending the union members across the street from the Tobin Center would not likely reduce any danger from terrorism, he said.

Terrorists? Really? I’ve heard some lawyers make outlandish arguments – especially when the law is not on their said, but comparing violinists to terrorists for passing out paper…..

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.

“The NLRB – Purposefully or Absentmindedly – Misrepresented Several of the ALJ’s Findings”

Unions have a knack at wanting to gloss over the details of contract language in collective bargaining agreements. This gives unions the ability to later allege a company violated the contract while the company is left without recourse to defend itself. Because of this, I insist on detailed collective bargaining agreements that leave very few stones uncovered. Even when dealing with less devious union negotiators, I keep in mind that the “friendly” ones will one day move on, and I cannot guarantee what type of career union agent I will deal with at that time. In my experience, union agents have become much more confrontational over the last five years – perhaps emboldened by an overly pro-union NLRB – so it remains a good practice to include detailed contract language.

And that is exactly what Fred Meyers Stores had in the “Union Access” clause in its collective bargaining agreement with the union representing its store. That clause stated that when the union visits the store, it “shall first contact the store manager” to notify the employer of the visit, and any contact between union representatives and employees shall “not interfere with service nor unreasonably interrupt employees with the performance of their duties.” The clause continued:

Business agents have the right to talk BRIEFLY with employees on the floor, to tell those employees they are in the store, to introduce themselves, and to conduct BRIEF conversations as long as the employees are not unreasonably interrupted. Such conversations should not occur in the presence of customers.

Business Representatives have the right to distribute fliers to employees on the floor AS LONG AS IT IS DONE QUICKLY. THE EMPLOYEES ARE NOT URGED TO STOP WHAT THEY ARE DOING TO READ THE MATERIALS AT THAT TIME AND FURTHER THAT THE MATERIALS ARE NOT PASSED OUT IN THE PRESENCE OF CUSTOMERS.

Business agents have the right to distribute materials in the break room. Lengthy conversations and discussions should always take place in the break room.

The parties agreed that the term “briefly” meant no longer than two minutes and the practice had been that only two union representatives during any one visit. Things rolled along smoothly until a new career union agent came to town. He called for “reinforcements” from the International to “energize” the union’s efforts. This resulted in groups of eight confrontational union representatives visiting the store at the same time.

One day the gang of eight entered the store, and the store manager reminded them that only two could be in the store at the same time. One union representative (wrongfully) said she had a right under “federal law” to “talk to employees as long as she wanted.” The confrontations escalated, and the store manager called the police. Upon arrival, the police told the union reps to leave the store or face arrest. One representative refused and was arrested. The others left. In the parking lot a representative tried to “educate” the police about his “federal rights.” In reply, the police said, “another word and you’re done.” Another word was uttered, and he too, was arrested.

While this may be a day in the life of having a union workforce, the NLRB actually found that the employer violated the National Labor Relations Act “by limiting the agents’ right to contact store employees,” by “disparaging the union,” and by threatening and causing the arrest of union representatives. Say what?

Thankfully businesses have a right to appeal bad decisions. On appeal, the court ruled that the union violated the collective bargaining agreement the moment the gang of eight entered the store without notifying management which was at least 5 minutes before the manager first said anything and a “long time before anyone was arrested – they had become trespassers [the employer] could lawfully expel from the Store.”

But the Court didn’t stop there. It concluded that the Board’s opinion was “more disingenuous than dispositive; it evidenced a complete failure to reasonably reflect upon the information contained in the record and grapple with contrary evidence – disregarding entirely the need for reasoned decisionmaking.”

The Court found it egregious that the Board stated the ALJ found “the parties did not have a clearly defined practice with regard to the number of union agents permitted to be in a store at any one time. [Yet, the ALJ expressly stated he made no such finding.] “The Board’s tone deafness – even after the dissent drew attention to the error – is the antithesis of reasoned decisionmaing.”

The Board also concluded the employer’s manager declined the union representative’s offer to read the parties’ access policy. Yet, the ALJ specifically stated he could not conclude what was said during the confrontation and “declined to determine precisely what occurred.”

The Court remanded the issue of whether the union representatives’ actions were protected noting “the Board – purposefully or absentmindedly – misrepresented several of the ALJ’s findings and failed to respond to key points raised by the dissent.”

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com.

Union Loses ULP Alleging Walmart Acted Unlawfully by Removing Protesters to Public Sidewalks During Black Friday Protests

If your remember, OUR Walmart – a UFCW backed union organizing committee focused on Walmart – engaged in demonstrations and picketing outside of Walmarts across the country on Black Friday (the day after Thanksgiving) 2012. After their demonstrations were over, OUR Walmart filed unfair labor practice charges against Walmart alleging that Walmart violated labor laws during the protests. 

One of the allegations OUR Walmart made was that Walmart violated Section 8(a)(1) of the National Labor Relations Act by telling employees that they could not be on company property and having police escort them off premises. Apparently as busloads of demonstrators arrived at each store to picket they were told by Walmart representatives that they could not picket or demonstrate on the company’s private property and they were moved to public sidewalks.

Importantly, the demonstrators included non-employees as well as employees who worked at different locations than where they picketed. Non-employee demonstrators can be removed from company property, and employees who are off-duty have less access rights than on-duty workers.

Since Walmart had a lawful solicitation and distribution policy requiring non-employees to obtain prior approval for activity on company property, and no Walmart employee made a request to remain on company property, Walmart acted lawfully by removing the protesters from its property.

Does your company have a lawful solicitation and distribution policy? Is it evenly and consistently enforced? Companies never know when a union will picket their facility. I have represented companies with just a few employees against rogue picketing by a zealous union. Having a lawful solicitation and distribution policy is a huge benefit when trying to thwart an uprising outside your front door or in your parking lot so you can continue conducting business. Make sure you are prepared.

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.

Union Access Rights

Union organizing campaigns are increasing both in number and complexity. Companies going through union organizing drives want to limit the union’s ability to access the company’s property both physically (being in the parking lot, break room, walking the floors) and indirectly (through bulletin boards, having employees pass out flyers to coworkers). Now is a good time to review when companies must allow organizers (either union business agents or pro-union employees) on their property and when organizers are trespassers who can be removed or arrested for refusing to leave.

Company Bulletin Boards

During normal union organizing campaigns, unions are not permitted to post anything on the company bulletin board. Unions are, however, granted access to post pro-union propaganda on company bulletin boards and other places where corporate communication with employees normally occurs as a sanction imposed by the National Labor Relations Board against employers who interfere with their workers’ right to organize.

Literature in the Parking Lot

Companies can prohibit non-employee union organizers from distributing union literature on parking lots and walkways reserved for employees if:

  1. Unions can communicate with employees through other available avenues; and
  2. Companies do not discriminate against unions by allowing other non-employees (like Girl Scouts) the ability to distribute their literature.

Only where extraordinary barriers exist making communicating with employees nearly impossible are companies forced to yield their property rights and allow union business agents to recruit union supporters on company property. For example, when the employer’s place of business is very remote and the workers are isolated for long periods of time, like working on an oil rig in the middle of the ocean.

Off Duty Employees

Off-duty employees have greater access rights to company property than non-employee union organizers. Yet, off-duty employees cannot return to work to engage in union solicitation if the company has a rule that:

  1. Limits access to the interior of the facility and other working areas;
  2. Is clearly disseminated to all employees; and
  3. Applies to off-duty employees seeking access to the facility for any purpose and not just to those employees engaging in union activity.

Denying off-duty employees entry to parking lots, gates, and other outside non-working areas is usually prohibited.

The NLRB has recently held that if a company allows off-duty employees the right to remain or return to company property for one reason, they cannot deny off-duty employees the right to remain or return to company property for another reason. For example, grocery stores, gas stations, and restaurants that encourage off-duty workers to frequent company property as paying customers cannot restrict off-duty employees from being on company property for other reasons, such as union organizing. Nor can companies require workers to attend a retirement party after-hours or to return to pick up their paycheck every other Friday but deny off-duty workers the right to engage in union organizing activity.

Access Rights in Collective Bargaining Agreements

For companies with unions, the terms and conditions of union access are usually laid out in the collective bargaining agreement. As always, check your union contract before disciplining an off duty employees from being on company property or calling the police before union business agents are trespassing on company grounds or inside your facilities.

Matt Austin is a Columbus, Ohio employment 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. You can call Matt at 614.285.5342 or email him at Austin@LaborEmploymentOSHA.com.