July is the best month of the year. It’s warm everywhere, even in Chicago. I look forward to the al fresco dining, outdoor concerts, neighborhood block parties, cookouts with family, and the beach. And sharks. July seems to be synonymous with this apex predator. Whether it is because the movie Jaws took place over the Fourth of July or it’s when Discovery Channel’s Shark Week battle for ratings with National Geographic Channel’s Sharkfest) or that the Sharknado series always premiered their newest sequel, sharks seem to be everywhere. In fact, this year, sharks off the coast of Brazil tested positive for cocaine.
And I’m a sucker for it, the more ridiculous the better (if you did not DVR Sharks vs. Nazis in Paradise this year, see if you can find it on-demand). Even when sharks are not fighting Nazis, I find myself having empathy for them. The ocean is their home. We are the ones disrupting them for various reasons. I understand why they may act aggressively when an Australian with a spear gun enters their habitat in a cage, disrupting their ennui, under the guise of “research.”
Which is the same reason why I understand why employers get upset when unions enter their property, seeking to meet with their employees. A few times a year I receive calls from angry clients, wanting to know why they have received an unfair labor practice charge for denying access to or forcing a union to leave their premises. “It’s my property” they cry. While true, whether an employer lawfully can enforce its property rights against a union can be complicated and nuanced.
The National Labor Relations Board (“NLRB” or the “Board”) actually allows an employer to enforce their property rights against a union and their representatives, with two notable exceptions: 1) when the union agent cannot access the employees through other reasonable means; or 2) when the employer enforces its property rights discriminatorily. In regard to the former, employers cannot deny property access to unions seeking to communicate with those who are otherwise inaccessible (e.g., employees who live and work at sea or remote logging camps). With the internet, email, and social media, an employee’s “inaccessibility” has become less likely.
Regarding the latter, this is where employers have more difficulty. Under this exception, an employer that allows access to nonunion organizations to use their facilities, solicit employees, and/or distribute tangible items, also must provide equal consideration to union representatives. Think about your employee bulletin board. How often do you see a coworker’s solicitation for his/her daughter’s girl scout cookies? Or raffle tickets to benefit a church? Or donations for a walk to raise awareness for cancer? If that is permissible, so too may be a solicitation for a union meeting to sign union authorization cards.
Allowing different entities to use meeting space presents similar issues. Say that you allow an Alcoholics Anonymous chapter to use your auditorium for its weekly meetings (a wonderful, generous and altruistic gesture). By doing so, you may need to allow a union to hold a meeting with your employees on premises. For unionized employers, access rights are common in collective bargaining agreements, so the sight of a union representative speaking with an employee is not the biggest of deals. And the Board will not tolerate unions that disrupt business operations. But for non-union employers, especially those who do not have sweeping “no exception” non-solicitation/no access policies, even the best intentions may be construed by the NLRB as treating unions differently and discriminatorily. Just like humans that invade a shark’s natural habitat, unions can be the uninvited guests that have a right to facilities and meeting spaces should employers be lax in their enforcement. However, unlike a shark, a savvy employer can keep these guests at bay with proper attentiveness and clear policies. After all, it’s better to navigate the waters skillfully than to end up as the catch of the day.
Rob Entin is a partner at FordHarrison.