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48 Lab. & Emp. L. 1 (2019-2020)

handle is hein.journals/laboemplo48 and id is 1 raw text is: AND Epomn FALL 2019 VOLUME 48, NUMBER 1 SECTION OF LABOR AND EMPLOYMENT LAW By Angie Cowan Hamada and Kyllan B. Kershaw AMERICAN BAR ASSOCIATION It comes as no surprise that the Trump National Labor Relations Board is overruling Obama-era precedent. Some contend that the Trump Board is simply doing what the NLRB always does with a Republican majority-swinging the pendulum to reflect traditional con- servative views on labor law, but others contend that, instead, the Trump Board is swinging a wreck- ing ball to dismantle workers' and unions' rights. Below, Angie Hamada, providing the union and employee perspective, and Kyllan Kershaw, providing the employer perspective, address this issue by focusing on some of the most con- troversial actions recently taken by the NLRB. War on Workers? Issue 1: Access Rights of Non-Employees In Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts, 368 NLRB No. 46 (2019), the Board held that a property owner not involved in an underlying labor dispute may prohibit leaflet- ting and similar protected activity by off-duty employees of a licensee or contractor performing work on the property owner's premises. Historically the Board (and the Supreme Court) have held that a property owner's own employees have a right to engage in Section 7 activities during non-working time and outside of work areas, including a right of access during off-duty hours. A property owner has likewise been free to deny property access rights to non- employees, such as third-party union organizers. The Board his- torically has adjudicated these access rights by applying a bal- ancing test weighing an employ- er's property rights and employ- ees' Section 7 rights. In Bexar County a contractor's off-duty employees attempted to leaflet on the property owner's privately-owned sidewalks. In prior cases the Board has afforded off-duty contractor employees essentially the same access rights as employees. Reversing these prior decisions, the Bexar County Board held that contractor employees are not generally entitled to the same Section 7 access rights as the property owner's own employees. Union & Employee Perspec- tive: This decision, which denies employees of contractors access rights unless they work exclu- sively on site is an egregious affront to Section 7 rights. This decision overrules NewYork NewY- ork, a decision upheld by the D.C. Circuit, which established that contractor employees may generally access public areas of a property where they regularly worked. The Bexar County Board applied regularly too vaguely, and failed to clarify the meaning of exclusively. As dissenting Member McFerran noted, the exclusivity requirement is arbi- trary and serves no purpose except to frustrate the exercise of Section 7 rights. This decision guts NLRA protections for a large segment of employees. As Mem- ber McFerran noted, The major- ity cannot credibly deny the con- sequences of adopting its new access standard here: the destruction of Section 7 rights in almost all cases where on-site contractor employees seek access to the property to communicate with members of the public. Employer Perspective: The Board struck an appropriate bal- ance between property rights and employees' Section 7 rights. Employees of a third-party con- tractor have a limited privilege to access the contracting employer's property to perform their assign- ments, hence, it is reasonable to limit contractor's employees access to that property during off-duty times. The Board appro- priately preserves employees' Section 7 rights by requiring such access where there is no other reasonable non-trespassory channel of communicating with their target audience. Issue 2: Protected, Concerted Activity? In Electrolux Home Products, Inc., 368 NLRB No. 34 (2019), the Board reversed an Administrative Law Judge's decision holding that Electrolux's discharge of a known union supporter violated the Act. The employer terminated the employee eight months after the employee participated in a meet- ing where managers told the employee to shut up. The Board found that Electrolux's proffered reason for the termination-insub- ordination-was pretextual, but reversed the ALJ's decision on the ground that the employer's provid- ing a pretextual reason for the dis- charge was insufficient in and of itself to establish anti-union animus. Union & Employee Perspective: This decision overrules years of Board precedent holding that continued on page 6 Published in Labor and Employment, Volume 48, Number 1, Fall 2019. © 2019 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Two Views on the Trn ip National Labor Relation

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