Nathan S. Newman
In an era of a more hostile federal legal environment for labor and declining union density in many industries, a number of state and local governments have sought to promote local laws that can support unions’ ability to organize workers. Federal courts have struck down many local and state laws supportive of unions as preempted by federal labor law, yet one labor reform seems to be fully within the power of state and local governments to enact: giving labor representatives access to an employer’s premises to talk with employees about their rights to form a union.
For labor unions and their community supporters, such local and state public access laws may be one of the few ways to effectively expand workers’ rights to organize given that the current national political environment makes any changes to federal labor law that are favorable to organizing unlikely in the near future. However, the question raised by employer opponents of these local laws is whether the laws violate employers’ federal constitutional rights to property and free speech, and whether they are legal under federal labor law.
Laws granting access to employer property inhabit a controversial legal space: the intersection of the federal regulatory state embodied by federal labor law, free speech concerns of the public seeking access and the businesses resisting access, and the role of state and local governments in defining what property rights an owner actually may exercise. As this Article outlines, legal precedents during the last few decades make generally clear that these local laws—even potential laws that would offer more extensive access to employer property not normally accessible to the public—should pass the muster of legal and constitutional tests. More broadly, this Article highlights how federal statutory law, federal constitutional rights, and state law interact to shape property law in a dynamic way, creating the opportunity for creative legislation at the state and local level.