Debate over the Employee Free Choice Act has focused public attention on the fairness of union certification process. Whatever the outcome of the EFCA debate, 3L Jesse Dill argues in a new paper on SSRN that pro-union advocates should also consider pursuing reform of the law governing union access to employer property. Jesse’s paper, entitled “Restoring Unions in America by Reforming Nonemployee Union Representative Access Rights to Employer Property,” will be published in Transactions: The Tennessee Journal of Business Law. Here is the abstract:
Unions have lost the once strong position they held in the American workplace. Academics have long debated how to restore the National Labor Relations Act’s relevance in today’s global marketplace. Congress’s preferred solution seems to be the Employee Free Choice Act, which would reform the unionization voting process, but this proposal does not strike at the heart of the matter. Labor is losing the debate on the benefits of unionization for the average worker because it is operating on an uneven playing field where employers can exert undue influence on employees to prevent them from organizing with no real opportunity for nonemployee union representatives to respond. True reform must focus on the ability of union representatives to access employer property, which is currently governed by the Supreme Court’s decision in Lechmere v. NLRB. Recognizing the importance of access to employer property, Professor Jeffrey Hirsch has recently proposed changes to the Lechmere test that would eliminate consideration of state law from the analysis. However, Labor should actually embrace state property law as an answer to the access dilemma. In order to support this claim, this article presents a unique analysis of the different ways in which state property law can provide a means for nonemployees to access private property. Thus, the article concludes with a proposal to reform the Lechmere analysis by emphasizing state property law and also calls for Congress to eliminate discrimination against labor viewpoints in employers’ decisions to open their property to nonemployees.