by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

TRESPASS; UNIONS: A grocery store may deny access to its property to nonemployees who wish to distribute information to consumers/customers concerning employment practices under the National Labor Relations Act unless.. United Food and Commercial Workers, AFL-CIO, Local No. 880 v. National Labor Relations Board, 74 F.3d 292 (D.C. Cir. 1996).

Union members and representatives gathered at store entrances on the employer's property to distribute information to consumers/customers regarding various aspects of the employer's employment practices. The employer had them removed as trespassers. The Supreme Court has the long established Babcock and Wilcox rule that under the National Labor Relations Act nonemployee union advocates do not have the right to enter private property unless the employees are otherwise inaccessible. The inaccessibility exception, however, has been interpreted as being quite narrow.

The union argued that the established doctrines should not apply here, where the union was attempting to reach customers, not employees. But the court found that the interest of nonemployees in activities directed at consumers/customers is weaker than that directed at organizing employees under the National Labor Relations Act. Accordingly, trespassing is only permitted if other methods of communication are not available. The union bears the burden of showing inaccessability, which the Supreme Court has defined as "[the target audience is] isolated from the ordinary flow of information that characterizes our society." The court pointed out that the union has access to mass media, which in most cases will resolve the access argument.

Comment 1: There clearly is a difference between the ability to contact people personally with a leaflet or a word and the ability to communicate through "mass media." Some courts, notably California, in earlier decisions, have concluded that an owner of a shopping center who permits some access to information distribution may have a Constitutional duty not to discriminate among the distributors.

Comment 2: Although the current Supreme Court is likely to agree with the D.C. Circuit court, this is not a foregone conclusion. The Court has been quite protective of speech rights. On the other hand, it's been protective of property rights as well.

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