Pickets at the Mall
By: KRISTA A.P. HATCHER
May 2009
Among the many groups that seek access to private shopping centers and malls are labor unions. Unions want access to employees, and sometime to customers, for a variety of reasons, from organizing tenants’ employees to protesting what they regard as substandard wages, unsafe work conditions, or unfair labor practices. Unions may try to picket or distribute flyers and other written materials in support of these efforts. There has been an uptick in union activity in recent months, and if the Employee Free Choice Act is enacted, we are sure to see even more union activity.
Rights of Employees
Section 7 of the National Labor Relations Act (NLRA) gives employees the right to organize, the right to bargain collectively, and the right to engage in other protected concerted activities. The NLRA prohibits any action by employers that tends to coerce, restrain, or interfere with employees’ “Section 7 rights.” The right to organize and the right to picket at the site of a labor dispute are considered core Section 7 rights. Nonetheless, employees’ Section 7 rights are not absolute and must be balanced against the rights of private property owners.
Rights of Unions and Property Owners at the Mall
In 1956 Southdale Center opened as the first enclosed shopping mall in the country. That same year the U.S. Supreme Court made an important pronouncement in NLRB v. Babcock & Wilcox about balancing the rights of private property owners and labor unions. The Court held that private companies can prohibit access to their premises by non-employees, including representatives of unions, if reasonable alternative channels of communication are available and the company does not discriminate between protected union and nonunion activities when restricting access to its premises. For the next several decades, courts and the National Labor Relations Board (NLRB) issued a number of conflicting decisions that attempted to balance the rights of employees with the property rights of business owners.
In 1992, the U.S. Supreme Court issued a decision, Lechmere, Inc. v. NLRB, which tilted the balance slightly in favor of private companies and remains the standard today. In Lechmere, union organizers seeking to organize the employees of a retail store in a shopping plaza left handbills on the windshields of employees’ cars in the shopping plaza’s parking lot, which was co-owned by the retail store. The retail store had a policy prohibiting non-employees from soliciting and distributing literature on its property, and the union was asked to leave. The Supreme Court held that the non-employee union organizers could be barred from the parking lot unless they could show no that there was no reasonable alternative for communicating with the store’s employees or that the store’s policy discriminated between union and nonunion activities on its premises. Since then courts and the NLRB have issued conflicting decisions as to whether the same standard applies when a union seeks access to private property for purposes such as protesting an employer’s payment of substandard wages or handbilling customers.
The confusion comes about, at least in part, because the Supreme Court has not defined what kind of restrictions it considers discriminatory. The NLRB and some courts have required businesses to allow union’s access to their property if charitable organizations, such as the Girl Scouts or the Salvation Army, are permitted to do so. Other courts have come to the opposite conclusion. Since Minnesota courts have not yet weighed in on the issue, a shopping center in Minnesota that allows solicitations by charitable entities on its premises, but denies labor unions the same access, runs the risk of committing an unfair labor practice.
Rights of Unions and Employees on Public Property Near the Mall
A related issue is the type of activities that employees and unions may undertake on public property near a shopping center, such as a public sidewalk. In general, employees and unions can engage in peaceful picketing on public property for the purpose of providing information about an employer. Employees may do so even if they do not work for the employer who is the subject of the picketing.
On the other hand, unions’ rights in these circumstances are more limited. For example, a union may try to prevent a shopping center from using a non-union contractor to remodel space. In this situation, the union’s real dispute is with the non-union contractor and this type of protest is referred to as “secondary” activity. Secondary activity that consists of picketing is generally illegal, even if it is on public property, but secondary handbilling is permitted. The legality of secondary activities falling between picketing and handbilling is less clear because it is decided based on the particular facts and circumstances of each case.
As if the rules were not confusing enough, some states, such as California, have granted greater rights of access to unions based on the provisions of the state’s constitution. In Minnesota, however, shopping centers and malls may exclude non-employee union representatives from their property under neutral, nondiscriminatory policies, unless the union has no reasonable alternative means of communicating its message.
Takeaway
Pay careful attention to this area because the law is not always clear and may change under President Obama’s administration. In the interim, shopping centers and other employers should adopt policies that do not discriminate between union access and access for other purposes and apply the policies consistently. For help in developing and adopting access policies and to learn more about proposed changes to federal labor laws, please contact one of our labor attorneys: Rick Ross, Karen Schanfield, or Krista Hatcher.