• Second Circuit Narrowly Construes Nonemployees' Right of Access to Employer's Property
  • August 11, 2008
  • Law Firm: Kilpatrick Stockton LLP - Atlanta Office
  • Businesses that would like to allow charitable, religious, and civic organizations to come onto their property to communicate with employees or the general public about nonwork-related matters such as charitable contributions and community programs often refrain from granting such access because they fear that it will mean they will have to grant union organizers the same access to their premises. A recent federal appellate court ruling interpreting Section 7 of the National Labor Relations Act (NLRA), however, offers encouraging news to employers in this regard.

    Among other things, Section 7 of the NLRA gives employees the rights to self-organize, to join a union, and to engage in other concerted activities for mutual aid and protection, and the exercise of these rights may sometimes involve communications between employees and nonemployees, such as union organizers. Although employees have substantial leverage to engage in Section 7 rights on their employer’s property, nonemployees generally do not have the right to enter upon private property to communicate with employees about matters within the scope of Section 7. Employers must grant access to nonemployee union organizers for the purpose of Section 7 communications with employees, however, when there is no reasonable alternative access to the targeted employees or when the denial of union access would be discriminatory in light of access granted to other nonemployees.

    The National Labor Relations Board (NLRB), the agency that enforces the NLRA, has traditionally taken a very broad view of discrimination in granting access to nonemployees and has often ruled that an employer could not lawfully preclude union organizers from soliciting for a union on private property when it had permitted other nonemployees to solicit on the property. In Salmon Run Shopping Center v. NLRB, the United States Court of Appeals for the Second Circuit recently rejected this broad interpretation of discriminatory access and held that an employer discriminates against nonemployee union representatives only when it treats such nonemployees seeking to communicate on a subject protected by Section 7 less favorably than another nonemployee communicating on the same subject.

    The Second Circuit’s Salmon Run Decision

    Salmon Run is a shopping mall in Watertown, New York. When a sporting goods store in the mall remodeled space in preparation for opening a new store, it hired a contractor that used a subcontractor employing nonunion carpenters. The Carpenters’ Union, a labor organization that represented no employees of the sporting goods store or the mall, subsequently asked mall management for permission to distribute literature to the general public in the mall. Although it did not disclose the nature of the literature to the mall management, the union wanted to distribute materials describing the advantages of union membership and criticizing the sporting goods store for using a nonunion subcontractor that did not pay area standard wages. Although the mall had previously allowed other organizations to distribute materials on its property when such distribution would enhance the mall’s business or public image, it denied the union’s request. The Carpenters’ Union then filed an unfair labor practice charge against the mall, claiming that it had been discriminatorily denied access. The NLRB held that the mall violated the NLRA by not allowing the union to distribute literature on its property.

    Upon review of that holding, the Second Circuit vacated the NLRB’s decision. The court agreed with the NLRB that Section 7 rights were involved because of the subject matter of the union’s intended communications and that the union could not be discriminatorily denied access, but the court disagreed with the NLRB’s articulation of the discrimination exception to the general right to exclude nonemployees from engaging in Section 7 activity on private property.

    The NLRB had found that the mall violated the NLRA because the mall allegedly demonstrated an intent to disfavor union activity. The Salmon Run court concluded that the NLRB’s focus should have been on a “comparison of the treatment of speakers on a subject that section 7 protects,” not on the mall’s motive. The court held that an employer discriminates against nonemployee union organizers only when it treats a nonemployee seeking to communicate on a subject protected by Section 7 less favorably than another person communicating on the same subject. Applying this rule to the Salmon Run facts, the court observed that the mall would have violated the NLRA if it had allowed the sporting goods store to defend its contractors for not paying area standard wages while not allowing the Carpenters’ Union to tell its story on that issue or if the mall had allowed other unions to distribute organizational literature. Because neither type of disparate treatment had occurred, there was no similarly situated nonemployee who was treated more favorably than the Carpenters’ Union, and the union was not discriminatorily denied access.

    Practical Implications

    Salmon Run is a decisive victory for employers. Under Salmon Run’s interpretation of the concept of discriminatory denial of access, an employer can refuse access to all nonemployee union organizers (assuming there is an alternative means to access the employees), even when the employer grants access to other groups that do not engage in Section 7 activity on the employer’s property. It should be noted, however, that the Second Circuit’s decision in Salmon Run will be binding on the NLRB only in the states within the Second Circuit’s jurisdiction (New York, Connecticut, and Vermont). The NLRB is free to continue applying its broad interpretation of discriminatory denial of access elsewhere, although the U.S. Courts of Appeals for the Fourth Circuit (covering Maryland, Virginia, West Virginia, North Carolina, and South Carolina) and the Sixth Circuit (covering Michigan, Ohio, Kentucky, and Tennessee) have previously expressed their disapproval of the NLRB’s broad standard.