REPUBLIC AVIATION Key Points

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REPUBLIC AVIATIONKey Points

• Balancing of Ees rights of self-org with Ers
  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 residents 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
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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 clients employees or with
  co-employees.
• See Guardsmark LLC, 344 N.L.R.B. No 97, 2005.

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(No Transcript)
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BABCOCK AND WILCOXKey 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
  ers property

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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 Boards attempt to balance in Jean
  Country
• Hudgens not applicable involved employee
  activity
• ees who do not reside on ers property
  presumptively not beyond reach of reasonable
  union efforts

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LECHMERE Two-Part Analysis
Did union have Reasonable Access to Employees
off Of employers Property?
Board may balance between Impairment of rights
to organize And property rights, Per Republic
Aviation and Jean Country
No
Yes
Accommo- dation Exists, Trespass Not Permitted
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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?

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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 Boards
  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
• Ers have right to permit charities to solicit on
  their property
• See Albertsons v. NLRB, 301 F. 3rd 441 (6th
  Cir., 2002)

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• The judge found, and we agree, that the
  Respondent unlawfully denied IAPE's requests to
  meet on the Respondent's property . . . . He
  effectively concluded that the Respondent's
  application of its policy precluding "outside
  organizations" from the use of its premises
  constituted unlawful disparate treatment as
  applied to IAPE, because the Respondent
  interpreted the same policy to permit meetings on
  its property for other organizations for
  example, a women's group made up of the
  Respondent's employees and focused on workplace
  issues of particular interest to women a
  minority employees' group also made up of the
  Respondent's employees and focused on
  minority-employee workplace issues a
  weight-reduction program for employees conducted
  by an independent organization and a similarly
  independently conducted smoke-ending program for
  employees. The judge found that the Respondent
  could not permit this array of employee
  activities and meetings at its facilities and at
  the same time lawfully deny the same kind of
  access to IAPE, an organization not only existing
  for the purpose of representing the Respondent's
  employees on matters of terms and conditions of
  employment, but also made up entirely of the
  Respondent's employees. The judge also properly
  concluded that the Respondent's particular
  interpretation of its policy--that an "outside
  organization" must have a "Dow Jones
  business-related purpose" to gain access to its
  meeting facilities--did not coherently and
  objectively distinguish between the activities
  permitted and the union activity denied. (Dow
  Jones And Company, Inc, 318 NLRB 574, 574-75,
  1995).

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• To discriminate in the enforcement of a
  no-solicitation policy cannot mean that an
  employer commits an unfair labor practice if it
  allows the Girl Scouts to sell cookies, but is
  shielded from the effect of the Act if it
  prohibits them from doing so. . . .. Although the
  Court has never clarified the meaning of the
  term, and we have found no published court of
  appeals cases addressing the significance of
  "discrimination" in this context, we hold that
  the term "discrimination" as used in Babcock
  means favoring one union over another, or
  allowing employer-related information while
  barring similar union-related information. . . .
  Although we are respectful of the Board's
  interpretation, we are not compelled to follow it
  when it rests on erroneous legal foundations . .
  . . No relevant labor policies are advanced by
  requiring employers to prohibit charitable
  solicitations in order to preserve the right to
  exclude nonemployee distribution of union
  literature when access to the target audience is
  otherwise available. The purpose of section
  8(a)(1) is to prevent employers from interfering
  with employees' exercise of section 7 rights. An
  owner of private commercial property who permits
  a charitable organization to distribute
  information or conduct solicitations on its
  property simply does not implicate the policies
  of the NLRA and does not, without more, render an
  employer guilty of an unfair labor practice when
  later it chooses to follow the general rule of
  "validly posting its property against
  nonemployee distribution of union
  literature."Cleveland Real Estate Partners, NLRB,
  95 F.3d 457, 65 USLW 2217, 153 L.R.R.M. (BNA)
  2285, 6th Cir. 1996.)

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GENERAL PRINCIPLE Employees have the right to
engage in self-organization, including obtaining
information about unions. Generally, unions do
not have the right to enter the employers
property, because the employee right is one of
self-organization. Therefore the employer may
generally prohibit a union that is organizing
from entering the employers property if the
union is able to reach employees through
reasonable efforts. But employer may
discriminate in access to its property.

• Labor Lens/Motivation Framework Conventional
  View
• Why would the employer wish to keep the union off
  the property? Assuming that the employer is not
  prohibiting a union from entering the property to
  deprive employees of pro-union information, it
  must be that permitting an outsider union on the
  property is disruptive to the orderly operation
  of the business. Thus, if the employer permits
  other outsiders on the property, but not unions,
  it suggests that the true motive for the
  prohibition is not avoidance of business
  disruption, but rather depriving employees of
  information useful to self-organization.

• Management Rights/Property Rights
  Framework/Business Decisions Evolving View
• Thus, an employer may permit outside solicitation
  because it wishes to do so (perhaps because it
  wishes to cultivate goodwill in the community).
  Such permission is a business matter unrelated to
  the employers labor policies and practices. On
  the other hand, if the employer permits
  solicitation by one union but not another union,
  or uses outside organization solicitation to
  support matters related to employment, then it
  can be presumed that the employers intent is to
  discriminate against the union, because the
  employer is using its premises for outside
  organizations to solicit on employment-related
  matters.

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E-mail Solicitation

• Is e-mail system
• employees work area in which ees may discuss
  unionization?
• employer equipment that employer may control for
  its own use?
• 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 e-mail system

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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. 1236 (1966), NLRB v. Wyman-Gordon,
  Inc. 394 U.S. 759 (1969).
• List made available to union.