The Rise and Fall of Private Sector Unionism: What Next for the NLRA?

Jeffrey M. Hirsch et al. — Sun, 12 Nov 2006 19:47:49 PST

In this Article, we ask whether the National Labor Relations Act, enacted over 70 years ago, can remain relevant in a competitive economy where nonunion employer discretion is the dominant form of workplace governance. The best opportunity for the NLRA’s continued relevance is the modification of its language and interpretation to enhance worker voice and participation in the nonunion private sector, without imposing undue costs on employers. Examples of such reforms include narrowing the NLRA’s company union prohibition; implementing a conditional deregulation system that relies on consent by an independent employee association; changing the labor law default to some form of a nonunion work group; expanding state and local authority over labor relations; and encouraging NLRA protection for employee use of employer-owned Internet services. These legal innovations have the potential to be welfare enhancing, as compared to outcomes likely to evolve under the current legal framework. Although the political likelihood of such changes is currently low, steps in this direction could result in an increased relevance for the NLRA in the modern economy.

Taking State Property Rights out of Federal Labor Law

Jeffrey M. Hirsch — Sun, 12 Nov 2006 19:47:49 PST

Currently, the National Labor Relations Board determines whether union organizers have a right to access employer property by looking almost exclusively to an employer’s state law right-to-exclude. If the employer possesses such a right, an attempt to exclude organizers will generally be lawful; if the employer lacks that right, the exclusions will be unlawful. This analysis makes little sense, as an employer’s state property interests are irrelevant to the primary labor issue in these cases—whether the exclusion interferes with employees’ federal labor rights. Employees will tend to view hostile or discriminatory exclusions of organizing activity as coercive, whether or not the employer has state right-to-exclude. Further, because the property rights issue is often complex, an employer cannot be sure of its ability to exclude organizers until litigation has ended and is thereby forced to decide whether to allow what is arguably a trespass, or protect its property interests and risk a labor law violation. The focus on state property rights also creates significant problems for the NLRB, as its lack of expertise in state property law leads to delay and often poorly-reasoned decisions.

I propose, therefore, a new analysis that eliminates consideration of state property rights from the NLRB’s right-to-access cases. Under my proposal, which I argue is more faithful to the Supreme Court’s Lechmere doctrine than the current analysis, the NLRB would focus on whether the manner in which an employer excludes organizers chills employee rights, while property issues—such as a trespass claim against organizers—would be determined by state courts. By creating a set of presumptions to guide employer attempts to exclude, the proposal would provide clarity for all parties, better protect employees’ labor rights, and free the NLRB from its struggles with state property law.