This month the National Labor Relations Board rolled back to 1956 the groundrules for non-employee union organizers, by barring them from organizing activities in the public spaces of a business establishment. Employers now can bar organizers from their public spaces subject to two minor exceptions; you are respectfully referred to my firm’s client alert providing specifics, see
This reversion to prior law should require employers to review their policies concerning use of public space, and the manner of doing so is addressed in the client alert. But also there is a bit of history playing out here that is not startling but is telling: the decline of the US labor movement and its loss of clout.
Unions have been slipping in power in the industrial marketplace, and indeed generally. With notable recent exceptions in the service sector (organizing at universities, organizing low-wage workers in fast food), overall union membership is eroding nationally. It is not surprising that the ability of organizers to enter employer premises has been scaled back in this fashion; note that the right of access was granted organizers during the Republican administration of Eisenhower, indicating the strength of the unions at that time; now, under a new Republican administration, organizer access has been rolled back.
In mid-century, when I was attending law school, I enrolled in a course in collective bargaining because it was taught by the best teacher I had ever had, Derek Bok (who later became the President of Harvard University). He reviewed the steady rise of labor power, and noted that one measure of its strength was that now union organizers were even permitted to walk into a place of business and extol union membership; implicitly, I believe he found that fact a strain on one’s capacity to comprehend the world, although in those days law schools were certainly likely to be strongly pro-business.
In any event, while it is not unusual to see that law and governmental regulation echo the reality of our society at any given time, and while I always thought that the right to enter private property to foster unionization was at bit bizarre, I harbor a small residual melancholy over the passing of the era of worker strength in an increasingly gig-driven economy.