[ Pobierz całość w formacie PDF ]
.In 1984 theBoard, with Member Don Zimmerman dissenting, overruled thisdecision and held that rules couched in terms of "working time"are lawful.25 The Board's view was that the meaning of "workingtime" and ''working hours'' within the context of no-solicitationrules had "attained substantial understanding," and that "manyunions and employers had fashioned their instructions, policiesand rules" so as to make clear the availabilitypagepagePage 66of paid rest periods for union activity.26 A majority of the Boardhas also held that no-solicitation rules that make an exception forcharitable solicitation are not per se invalid.27 Disparateenforcement of such a rule, in contrast to a "small number ofisolated beneficent acts"28 or "an employer's toleration ofisolated beneficent solicitation,"29 can run afoul of the law.A few years after Republic Aviation, when the Supreme Courtconsidered the access of nonemployee union organizers tocompany property, it looked at the matter quite differentlyeventhough the employees' right to communicate, albeit with moreexpert outside assistance, was involved.In this context the Courtdid consider the availability of alternate avenues ofcommunication to be relevant.30 In this case the NLRB had notedthat other means of communication (the mail, telephones, etc.),as well as the homes of the workers, were open to the union.The Court, which found that the situation did not involve workerswho were isolated from communication attempts or who livedon company property,31 stated:.when the inaccessibility of employees makes ineffectivethe reasonable attempts by nonemployees to communicatewith them through the usual channels, the right to excludefrom property has been required to yield to the extentneeded to permit communication of information on the rightto organize..no.obligation [similar to that owed to the employeesin connection with their right to solicit during nonworkinghours on company property] is owed nonemployeeorganizers.Their access to company property is governed bya different consideration.The right of self-organizationdepends in some measure on the ability of employees tolearn the advantages of self-organization from others.Consequently, if the location of a plant and the livingquarters of the employees place the employees beyond thereach of reasonable union efforts to communicate withthem, the employer must allow the union to approach hisemployees on his property.No such conditions are shown inthese records.32However, as the Supreme Court noted in another context, "Theplace of work is a place uniquely appropriate for dissemination ofviews concerning the bargaining representative and the variousoptions open to the employees."33pagepagePage 67In 1978 the Supreme Court concluded that the right of workersto distribute literature on nonworking portions of the employer'sproperty extends to disputes that involve neither organizationalnor bargaining disputes.34 The Court held that the distributionof the union newsletter expressing opposition to a state's right-to-work law and to a presidential veto of an increase in theminimum wage fell within the "right to engage in otherconcerted activities for the purpose of.mutual aid orprotection" protected by section 7 of the NLRA.On the otherhand, "purely political tracts" are unprotected, even though theelection of political candidates, for instance, can have an effecton employment conditions.35Another group of cases involving union access to companyproperty has to do with "quasi-public" property or facilities(those generally open to customers or the public).In CentralHardware Co.v.NLRB36 the Supreme Court was confronted witha rule prohibiting nonemployees from soliciting in the parkinglots of retail establishments.The NLRB held that this prohibitionwas overly broad and violated the NLRA.In this case the Boardrelied on a Court decision that a shopping center was thefunctional equivalent of a business district, in which FirstAmendment rights can normally be asserted.But the Court, in anopinion written by Justice Lewis Powell, ruled that this decisionhad no applicability to the NLRA.37 The Court characterized theprinciple involved in the issue of the access of nonemployeeunion organizers to employers' property as follows:This principle requires a "yielding" of property rights only inthe context of an organization campaign.Moreover, theallowed intrusion on property rights is limited to thatnecessary to facilitate the exercise of employees' [section] 7rights.After the requisite need for access to the employer'sproperty has been shown, the access is limited to (i) unionorganizers; (ii) prescribed nonworking areas of theemployer's premises and (iii) the duration of organizationactivity [ Pobierz całość w formacie PDF ]