September 24, 2021

Volume XI, Number 267

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Supreme Court Favors Employer Property Rights Over Union Access To Employees

The Supreme Court recently decided in favor of employers on a property dispute with union agents seeking access to workers for purposes of union organizing. In Cedar Point Nursery v. Hassid, the Court invalidated a California statute that had granted union organizers the right to enter private property to meet with workers on-site. The Court focused on the balance between a property owner’s right to exclude people from its property and a union’s right to organize workers. 

The National Labor Relations Act (NLRA) excludes farmworkers, meaning the Court’s opinion does not directly impact the NLRA – but it could have an indirect impact. The NLRB has long found that employers have the right to exclude union agents from their property, subject only to two very limited exceptions: when the union agent cannot access the employees through other reasonable means, or when the employer enforces its property rights discriminatorily. Pro-union administrations in the past have attempted to change this balance between employer property rights and union agent access to employees, but the Supreme Court’s decision in Cedar Point Nursery implies that it would be supportive of the NLRB’s current pro-employer view. 

That NLRB view on employer property rights has been reinforced by NLRB decisions from the past few years. For example, in a case where the employer called the police on union agents in its parking lot, the Board found that an employer only discriminates against union agents seeking access to private property where the union’s activities are “similar in nature” to past activities that the employer permitted on its property. In another case, the Board found that an employer can eject union agents from public areas of its property under certain circumstances. 

The Supreme Court’s Cedar Point Nursery decision shows that the current high court is receptive to similar arguments favoring employers’ property rights, which is welcome news for non-union employers.

© 2021 BARNES & THORNBURG LLPNational Law Review, Volume XI, Number 181
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About this Author

Thomas Payne Labor and Employment Attorney Barnes Thornburg Law Firm Indianapolis
Associate

Thomas Payne is an associate in the Indianapolis office of Barnes & Thornburg, where he is a member of the Labor and Employment Department.

Prior to joining Barnes & Thornburg full time, Thomas served as a summer associate in the firm’s Indianapolis office. He also gained experience as a pro bono law clerk for the Indiana Office of the Attorney General and for the Honorable Lance Hamner of the Johnson County Superior Court.

With an eye toward becoming a lawyer, Thomas began his education at Purdue University,...

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