Section 15 Beyond Organizing Activity

• Library: Employer-Employee Law 2008

Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), was decided in the context of labor organization. But the Lechmere doctrine has been expanded into other areas, including area standards activity, which involves protests against an employer for providing compensation that is below the “area standard.” The purpose of this activity is to cause the employer to adopt a compensation plan that corresponds to the area standard negotiated by the union in question. The union usually informs the employer in advance that its compensation is below the area standard; activity begins if the employer refuses to raise its compensation.

The Third Circuit has specifically held that Lechmere, 502 U.S. 527, does apply to area standards handbilling and a nonemployee’s right of access to the employer’s property in general. Metro. Dist. Council of Philadelphia & Vicinity United Bhd. of Carpenters & Joiners of Am., AFL-CIO v. NLRB, 68 F.3d 71 (3^rd Cir. 1995). In Metropolitan District Council, the employer denied union representatives access to its property to distribute area standards handbills to potential purchasers of condominiums that the employer was constructing.

The Metropolitan District Council court provided an exhaustive analysis of Lechmere, 502 U.S. 527, and all of the cases that preceded it and found that Lechmere was clearly controlling. The union attempted to distinguish Lechmere, claiming that its holding only applied to derivative rights, which are the rights of employees to receive information from other union members about organizing a union. The union claimed that Metropolitan District Council involved nonderivative or direct rights, which involve employee representatives engaging in concerted activity such as area standards handbilling. The Metropolitan District Council court rejected this argument and adopted a broad holding of Lechmere, stating that “a nonemployee does not have a right of access to the employer’s property, at least if he has reasonable alternative means to exercise his [NLRA] section 7 rights whether they are direct or derivative.” Metro. Dist. Council, 68 F.3d at 75. See also Cleveland Real Estate Partners v. NLRB, 95 F.3d 457
(6^th Cir. 1996) (the owner of private commercial premises may forbid handbilling by nonemployee union members engaged in nonorganizational, informational activity directed at the general public unless the union is able to show...