Section 17 Incumbent Union?s Access to Property

• Library: Employer-Employee Law 2008

All of the cases applying Lechmere, Inc. v. NLRB, 502 U.S. 527
(1992), have involved the union’s attempt to access an employer’s property to either:

• picket and handbill to persuade employees to join the union

• protest the payment of nonunion wages; or

• protest the use of nonunion workers at an employer’s site

A test similar to Lechmere has also been applied in cases such as Brown Shoe Co. v. NLRB, 33 F.3d 1019 (8^th Cir. 1994), to determine an incumbent union’s right of access to an employer’s property to properly represent its member employees. In Brown Shoe, the employer denied access to a union representative who wanted to come on site to gather information about the hours the employees were working. The NLRB found that the information sought by the union was relevant and necessary to represent the plant employees and that the employees’ right to responsible representation justified the union access to the employer’s property. The Eighth Circuit reversed the NLRB’s decision and held that the union could effectively represent the employees through some means other than entering the employer’s property. The court applied a Lechmere-like balancing test, relying on NLRB v. Holyoke Water Power Co., 778 F.2d 49 (1^st Cir. 1985), which stated that a union may have access to an employer’s property for representation purposes only when such access is necessary for the representation of the employees. In Brown Shoe, the court stated that Holyoke does not require that a union have alternative means of performing the...