On Tuesday, Walmart succeeded in getting a temporary restraining order against the United Food and Commercial Workers (“UFCW”) and OUR Walmart, an organization of activists and Walmart employees, preventing “non-Walmart employees” from entering onto Walmart’s property. This looks to be Walmart’s strategy to fight the growing direct-action movement by UFCW, allied labor and community groups, and OUR Walmart; they successfully sought injunctions in Texas, Florida, and Maryland along the same lines last year.
The reason Walmart is suing in state court to enjoin the “non-Walmart employee” elements of these groups from protesting them is because of a seemingly reasonable quirk of federal labor law that permits employers to exclude union activists who are not their own employees from accessing their property, so long as they do not exclude only union activists, to the extent they are so permitted by state property law. In practice what this means is that union organizers, boycotters, or other activists otherwise protected by the First Amendment cannot access the property of employers unless they are themselves employees. When you consider the shift to a services and retail economy, where people worked in places surrounded by parking lots, office parks, or nestled in shopping centers, this amounts to a serious problem. Unless workers spontaneously self-organize, it is nearly impossible for unions to inform them of and help them use their rights under section 7 of the National Labor Relations Act. (This is a function of unions that the courts have recognized, i.e., that unions have “derivative rights,” to inform workers of their rights under the NLRA).
Whether or not you support workers’ rights to organize (and, again, the right of organizers to access workers at work is a right <em>of the workers</em>) under the NLRA, and whether or not the it seems obvious to you that property owners should be able to exclude whomever they wish, the rationale under which the courts are granting these injunctions is increasingly indefensible.
This all comes about because of a case called Lechmere v. National Labor Relations Board, an opinion authored by Justice Thomas. In Lechmere, the NLRB was pursuing unfair labor practice charges against a grocery store that had excluded union organizers from its parking lot. The Court, capping off a run of jurisprudence severing workers’ and union rights from First Amendment law, held that absent extraordinary circumstances–such as miners who live in a remote mountain village–employers never had a duty to accommodate non-employee organizers, even if that interfered with employees’ abilities to express their Section 7 rights to organize. Justice Thomas’s opinion is predicated on the idea that the federal government didn’t have the authority to suborn trespassing; that the rights of property owners are a matter of state law, and the NLRA did not expressly preempt those laws.
It’s an elegant opinion, but hard to square, first of all, with Congress’s power to preempt state property law. It preempts property law all the time, and it is just as often implicit. The big example of course is Title II of the Civil Rights Act, which prohibits discrimination based on race, sex, religion, etc., in places of public accommodation. The prohibition against invidious discrimination in Title II is not based only on “immutable” characteristics like race; it also prohibits religious discrimination, which is a matter of personal attitudes and beliefs. On a more picayune level, the federal government preempts employers’ rights against trespass when it sends OSHA inspectors to a workplace. (Note however that because of the Fourth Amendment stricture against unreasonable searches and seizures, an administrative warrant is necessary for inspector access).
In a country of parking lots and office parks, Lechmere makes union organizing exceedingly difficult. It essentially allows employers to create a cordon sanitaire around their workforce to keep them ill-informed of their rights under the NLRA–the precise concern that Justice Thurgood Marshall expressed in Amalgamated Food Employees v. Logan Valley Plaza:
The large-scale movement of this country’s population from the cities to the suburbs has been accompanied by the advent of the suburban shopping center, typically a cluster of individual retail units on a single large privately owned tract. It has been estimated that, by the end of 1966, there were between 10,000 and 11,000 shopping centers in the United States and Canada, accounting for approximately 37% of the total retail sales in those two countries.
These figures illustrate the substantial consequences for workers seeking to challenge substandard working conditions, consumers protesting shoddy or overpriced merchandise, and minority groups seeking nondiscriminatory hiring policies that a contrary decision here would have. Business enterprises located in downtown areas would be subject to on-the-spot public criticism for their practices, but businesses situated in the suburbs could largely immunize themselves from similar criticism by creating a cordon sanitaire of parking lots around their stores. Neither precedent nor policy compels a result so at variance with the goal of free expression and communication that is the heart of the First Amendment.
Therefore, as to the sufficiency of respondents’ ownership of the Logan Valley Mall premises as the sole support of the injunction issued against petitioners, we simply repeat what was said in Marsh v. Alabama, 326 U.S. at 506,
Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.
Logan Valley Mall is the functional equivalent of a “business block,” and, for First Amendment purposes, must be treated in substantially the same manner.
The Supreme Court got it wrong in Lechmere. Obviously employers don’t have a duty to let swarms of activists interfere with their business. The NLRB has years of applicable rules about what “reasonable access” means. It would be very workable to have a rule that permits reasonable access for organizers. It is Thomas’s conflation of access with “trespassing” under state law that causes the problem–and why Walmart is using the state courts to enjoin union activity, another contemporary throwback to the Gilded Age. The principle that the federal government can stop you from using your publicly-open property to discriminatorily exclude someone is so much with us as to be invisible. The exception for union activists should disappear too.