Taking State Property Rights Out of Federal Labor Law

Abstract

The National Labor Relations Board's current analysis of union organizers' right to access employer property relies heavily on an employer's right to exclude under state property law. If the employer possesses this right, an attempt to exclude organizers is generally lawful; if the employer lacks this right, the attempt is unlawful. This scheme makes little sense doctrinally, as an employer's property interests are usually irrelevant to the issue that should be the Board's primary concern— whether the removal of union organizers interferes with employees' federal labor rights. I propose eliminating consideration of state property rights from right-to-access cases. Instead, the Board should focus on whether the manner in which an employer excludes organizers chills employee rights, while property issues—such as a trespass claim against organizers—should be determined by state courts. The proposal includes presumptions to guide employer conduct, providing clarity for all parties, better protecting employees' labor rights, and freeing the Board from its struggles with state property law.