To conduct an organizing drive, a union must be able to communicate with the employees. But the employer has valid interests in seeing that employees and organizers do not interfere with company operations. Several different problems arise from the need to balance these interests.
One problem is the protection of the employer’s property rights. May nonemployee union organizers come onto the employer’s property to distribute union literature—for example, by standing in the company’s parking lots to hand out leaflets when employees go to and from work? May organizers, whether employees or not, picket or hand out literature in private shopping centers in order to reach the public—for example, to protest a company’s policies toward its nonunion employees? The interests of both employees and employers under the NLRB are twofold: (1) the right of the employees (a) to communicate with each other or the public and (b) to hear what union organizers have to say, and (2) the employers’ (a) property rights and (b) their interest in managing the business efficiently and profitably.
The rules that govern in these situations are complex, but in general they appear to provide these answers: (1) If the persons doing the soliciting are not employees, the employer may bar them from entering its private property, even if they are attempting to reach employees—assuming that the employer does not discriminate and applies a rule against use of its property equally to everyone. 1 (2) If the solicitors are not employees and they are trying to reach the public, they have no right to enter the employer’s private property. (3) If the solicitors are employees who are seeking to reach the public, they have the right to distribute on the employer’s property—in a common case, in a shopping center—unless they have a convenient way to reach their audience on public property off the employer’s premises. 2 (4) If the solicitors are employees seeking to reach employees, the employer is permitted to limit the distribution of literature or other solicitations to avoid litter or the interruption of work, but it cannot prohibit solicitation on company property altogether.
In the leading case of Republic Aviation Corp. v. NLRB, the employer, a nonunion plant, had a standing rule against any kind of solicitation on the premises. 3 Thereafter, certain employees attempted to organize the plant. The employer fired one employee for soliciting on behalf of the union and three others for wearing union buttons. The Supreme Court upheld the board’s determination that the discharges constituted an unfair labor practice under Section 8(a) of the NLRA. It does not matter, the Court said, whether the employees had other means of communicating with each other or that the employer’s rule against solicitation may have no effect on the union’s attempt to organize the workers. In other words, the employer’s intent or motive is irrelevant. The only question is whether the employer’s actions might tend to interfere with the employees’ exercise of their rights under the NLRB.
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