NLRB Is Considering Expanding Union Rights to Organize on Employer Premises: What Employers Should Do Now

The following article should be of interest to all Florida employers

By Peter M. Panken, Steven M. Swirsky, and Michael W. Casey, III

The new Obama National Labor Relations Board (“NLRB” or the “Board”) has signaled that it will likely be granting union organizers the right to enter employers’ premises to conduct union organizing activity. This would reverse a trend in the last few years of preserving an employer’s property rights, and of confining union organizers to areas outside of an employer’s private premises, including those areas open to the public, in retail, healthcare, hospitality, and other venues where non-employees are allowed access.

It has long been the law that an employer is generally permitted to limit access to its private property, so long as the employer does not discriminate against outside union organizers. However, it has been widely recognized that the exception of allowing charitable organizations to solicit on company premises has not opened the floodgates to union organizers.

But the newly constituted NLRB, composed of a majority of attorneys who had in their law practices represented unions, has now issued an invitation “for all interested parties to file briefs regarding the question of what legal standard the Board should apply in determining whether an employer has discriminated against nonemployee union agents seeking property access.”
Given the current composition of the NLRB, which has supported union positions over those of management in virtually every case decided by it since the new members were seated this past spring, we fully expect a decision that greatly expands the rights of non-employee union organizers to enter an employer’s premises to engage in union activity. The Board would not have issued its “invitation” if it planned to reaffirm existing interpretations of law.


Employers are well advised to consider the following actions to preserve, as best possible, intended restriction and to ready their businesses for a likely change in Board law:

1. Review all existing rules and policies prohibiting non-employees from soliciting on company premises, as well as those restricting solicitations by employees to be sure that the rules themselves do not create undue risks.

2. Revise those rules and policies that are most likely to be subject to adverse scrutiny by the NLRB.

3. Review the manner in which such rules and policies are applied and administered to ensure that lawful non-solicitation rules are consistently enforced and appropriate documentation is maintained.

4. Establish protocols to monitor the enforcement of the rules and to maintain written records of communications regarding such rules and policies and their application.

5. Consult with counsel promptly when any non-employees, including union organizers, seek permission or attempt to enter company premises, to assess vulnerability to unfair labor practice charges, discover what actions may be taken lawfully, and assess the precedential value of decisions made and actions taken.

6. Assess the risk associated with allowing charitable solicitations on company premises (although many employers allow United Way solicitations and similar solicitations, these employers may be well advised to have such solicitations conducted by off-duty employees rather than outsiders).


Employee Who Opposes Unionization Can Seek Injunction, Says Eleventh Circuit


By Mark Beutler


The Eleventh Circuit recently ruled that a Florida Greyhound Track employee who opposed unionization has standing to seek an injunction barring the enforcement of a neutrality agreement alleged to be in violation of NLRA Section 302. Mulhall v. UNITE HERE Local 355, 11th Cir., No. 09-12683, 9/10/10. 


Section 302 of the NLRA prohibits employers from giving "things of value" to unions or their agents.  The idea is to prevent employers from paying off unions or their agents in exchange for bargaining concessions.  The union is supposed to represent the interests of the employees, and should not sacrifice those interests in exchange for money or other things of value. The allegedly illegal bribe in the case was the neutrality agreement itself. 


In this case, a union (UNITE HERE local 355) promised an employer, Hollywood Greyhound Track which operates Mardi Gras Gaming in Hallandale Beach, to support a ballot initiative that would allow gaming.  The union also agreed to refrain from striking, picketing or boycotting the employer. In exchange, the employer would give the union contact information for all employees and access on company property to the employees for purposes of organizing, and the employer also agreed to refrain from opposing the union. Once the ballot initiative passed, the company refused to keep its part of the bargain, alleging that the deal was illegal under Section 302. 


The union filed a claim with an arbitrator alleging that that the employer breached the neutrality agreement. The arbitrator rejected the employer’s defense that the agreement was illegal, and ordered that the employer comply with its agreement and assist the union in obtaining exclusive representation of the employees. The district court upheld the arbitrator’s decision. 

Martin Mulhall, an employee opposed the union, intervened in the case. He sought an injunction barring enforcement of the neutrality agreement. The union argued that he had no standing to assert the claim because the union had not yet been recognized by the employer as the exclusive bargaining representative. The district court agreed, and dismissed Mulhall’s claim. The Eleventh Circuit reversed.


The Eleventh Circuit held that Mulhall had a legally cognizable associational interest (i.e., association with the union) that was adversely affected by the neutrality agreement. There was a significant risk that enforcement of the neutrality agreement would result in his employer being unionized and his being forced against his will to accept the union as his exclusive representative. Finally, the court rejected the argument that the case was not ripe until the union succeeded in its effort organize the employer. 


The case was filed in the Southern District of Florida by National Right to Work Legal Defense Foundation on behalf of Mulhall. NRTW provides free legal assistance to employees who oppose compulsory unionization. NRTW has been trying to make the argument -- thus far with limited success -- that neutrality agreements violate Section 302 because the employer gives something of value to the union in exchange for bargaining concessions. In other words, the union is trading the legal rights that belong to the employees (whom the union does not yet represent), to gain the status of exclusive representative. The union can then collect union dues from its members, even though the union has been disabled from fully pursuing the employees' interests by the neutrality agreement. In this case, the employer received lobbying assistance from the union. In some cases, the employer can receive a docile union; in other cases, relief from the pain of a corporate campaign is the bargain.


The decision is notable because it departed from the customary bipolar judicial orientation were courts see only two players in the labor-management equation -- the union and the employer.  In Mulhall, the Court recognized a third player – the employees.   


Employers that enter into neutrality agreements in order to buy labor peace should be aware that neutrality agreements may one day be seen as illegal under Section 302, and thus unenforceable. The effect is that labor peace is purchased with a bad check. However, the employer is now exposed to litigation filed by anti-union employees.