Is the right to organize unconstitutional?

• Author: Fischer, Aron

Waremart Foods v. NLRB, 354 F.3d 870 (D.C. Cir. 2004).

Do union organizers have the right to organize on private property? As far as federal law is concerned, the answer to that question is clear. Employee organizers have broad rights under the National Labor Relations Act (NLRA); nonemployee union organizers have virtually none. Until a recent decision by the D.C. Circuit, however, there was little reason to believe that federal law, much less the Constitution, prevented states from granting workplace access rights to nonemployee organizers. While the issue had not been squarely addressed, it seemed safe to assume that state right-to-organize laws were the type of economic regulation subject to highly deferential constitutional review since the end of the Lochner era.

The D.C. Circuit challenged that assumption in Waremart Foods v. NLRB (Waremart II). (1) The court overturned a National Labor Relations Board (NLRB) decision (2) holding that a nonunion supermarket had engaged in unfair labor practices by attempting to bar union organizers from distributing literature to consumers in the store parking lot. Although California law appeared to protect labor-related leafleting on private property, the D.C. Circuit reasoned that to the extent the state law afforded special protections to labor leafleting, it was content-discriminatory in violation of the First Amendment. (3) Although the D.C. Circuit did not directly overturn the California law--it instead "construe[d] it to avoid unconstitutionality" (4)--at the heart of Waremart II lies the notion that laws expressly protecting labor-related speech violate the First Amendment.

This Comment considers the sweeping implications of Waremart II's First Amendment analysis and takes a far more deferential view of the constitutionality of state labor laws. Part I briefly reviews the rights of nonemployee organizers prior to Waremart II. Part II explores the scope of the D.C. Circuit's opinion, arguing that the court's blunt reasoning calls into question the constitutionality of virtually all right-to-organize laws--including provisions of the NLRA itself. Part III suggests an alternative analysis of the California law that is both more faithful to First Amendment principles and less threatening to state economic regulation.

I

As currently interpreted by the Supreme Court, federal labor law offers few protections for nonemployee union organizers. The text of the NLRA does not mention nonemployee organizers at all, providing only that "[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations." (5) Although the Court made clear early on that the rights of nonemployees under the NLRA were limited, (6) the NLRB's interpretations shifted over time, and by the late 1980s nonemployee organizers enjoyed not insignificant rights to organize in private workplaces. (7) But the Supreme Court put a virtual end to that in 1992, clarifying in Lechmere, Inc. v. NLRB that, "[a]s a rule," (8) the NLRA does not compel private employers to let nonemployee organizers on their property, subject only to very "narrow" exceptions. (9)

First Amendment protection for nonemployee organizing on private property has followed a similar trajectory. In Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., the Court held that union organizers had a First Amendment right to picket in privately owned shopping malls. (10) Only eight years later, however, the Court overruled Logan Valley Plaza in Hudgens v. NLRB and held that "the constitutional guarantee of free expression has no part to play" in cases involving labor picketing at private places of business. (11)

Despite the Court's retreat from a federal right to organize on private property, before Waremart II it appeared that states were free to extend workplace access rights to nonemployee organizers. As the Supreme Court had expressly noted, even after Lechmere nothing in the NLRA guaranteed employers the right to exclude nonemployee organizers from their property; this right came from state property law. (12) Meanwhile, Lechmere's holding that the NLRA contained virtually no protections for nonemployees seemed to cut against the notion that state laws granting rights to nonemployees would be preempted by the NLRA. (13)

Before Waremart II, the First Amendment seemed to present even less of a threat to state workplace access laws than did NLRA preemption. In PruneYard Shopping Center v. Robins, the U.S. Supreme Court upheld a California Supreme Court decision holding that the right to leaflet in shopping malls was protected by free speech provisions of the state constitution. (14) The mall owners argued that California's protection of picketing on private property violated the mall owners" First Amendment rights, compelling them to endorse messages with which they disagreed. The Court was unmoved. As Justice Marshall observed in his concurrence, the ability of states to regulate access to private property beyond the level set by federal law seemed compelled by the negative precedent of Lochner v. New York. (15) The alternative would be the untenable proposition "that the common law of trespass is not subject to revision by the State." (16)

II

Against this backdrop, the Waremart II court's analysis of California labor law is extraordinary. Below, the NLRB had reasoned that a California statute, the Moscone Act, protected picketing and leafleting related to labor...