Labor Board v. Babcock Wilcox Co.

19 Analyses of this case by attorneys

  1. A Recent Supreme Court Decision Impacts Union Organizing for Agricultural Workers in California

    Snell & WilmerGerard MoralesJuly 12, 2021

    The majority rejected the Board’s attempts to liken this dispute to those addressed in past precedent under the NLRA. In both N.L.R.B. v. Babcock & Wilcox Co., 351 U.S. 105 (1956), and later in Central Hardware Co. v. N.L.R.B., 407 U.S. 539, 545 (1972) the Supreme Court assessed certain rights under the NLRA in tension with employer property rights. Both of the aforementioned cases acknowledge the principle that in specific circumstances in the context of union campaigns, property rights may need to “yield” to the organization rights.

  2. General Counsel Abruzzo Looks to Overturn Board Precedent Again: This Time, Seeking to Broaden Union Access to Public Spaces

    Proskauer - Labor RelationsJoshua FoxMay 31, 2022

    However, the closing of the case allowed GC Abruzzo to issue the Advice Memorandum and opine on the legality of the prohibition of the union’s access to public facilities.The History of Non-Employee Union Access Cases Pre-2019In 1956, the Supreme Court issued NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), which held that employers could exclude non-employee union representatives from an employer’s property unless one of two conditions are present:Employees are otherwise inaccessible to the union; orThe employer has discriminated against the union by prohibiting it from using the employer’s facilities, but provides access to non-union groups.After Babcock, the Board was faced with a number of fact-specific scenarios confronting the discrimination questions, including situations involving “public spaces” – i.e., spaces either contained within, or adjacent to yet part of, an employer’s private property, but which were open to the public.

  3. Top Five Labor Law Developments For June 2021

    Jackson Lewis P.C.Jonathan SpitzJuly 19, 2021

    The Supreme Court reversed, finding the California regulation constituted a per se taking and was unconstitutional. The Court distinguished its precedent recognizing property access rights under the National Labor Relations Act (NLRA) under Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), and NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956). It clarified that the NLRA “did not require employers to allow organizers onto their property, at least outside the unusual circumstance where their employees were otherwise ‘beyond the reach of reasonable union efforts to communicate with them.’” (In Lechmere, where they resided off company property, employees are presumptively not beyond the reach of the union’s message.)

  4. The U.S. Supreme Court Finds California Organizing Regulation Is A Per Se Physical Taking

    Sherman & Howard L.L.C.James KorteJune 30, 2021

    The majority rejected the National Labor Relations Board’s argument that NLRB v. Babcock & Wilcox Co.’s approach of balancing property and organizational rights should guide the Court’s analysis. 351 U. S. 105, 113 (1956). In rejecting the Board’s argument, the majority recognized that Babcock was not a taking case, and “[w]hatever specific takings issues may be presented by the highly contingent access right we recognized under the NLRA, California’s access regulation effects a per se physical taking under our precedents.”

  5. U.S. Supreme Court Must Draw Difficult Lines in California Property Rights Dispute

    Kelley Drye & Warren LLPWayne D'AngeloApril 6, 2021

    Justice Brett Kavanaugh suggested that the court could avoid difficult questions about line-drawing and reasonable searches and instead arrive at a “very simple” resolution to the case that would result in a win for the businesses. In NRLB v. Babcock & Wilcox, 351 U.S. 105 (1956), Justice Kavanaugh observed, the Supreme Court ruled that an employer’s right to exclude union organizers from its property must yield when employees would be otherwise unreachable through normal channels.Many Court observers are predicting a narrow victory for the property owners.

  6. A Property Right To Exclude Others: Cedar Point Nursery’s Implications For Regulatory Enforcement

    (ACOEL) | American College of Environmental LawyersTheodore GarrettMarch 30, 2021

    This prompted questions from the Court on how one would apply the “common law” test to situations that did not exist when the Fifth Amendment was adopted, such as access to space ships or driverless cars (Justice Breyer), or whether the intrusion by a labor union in this case would have been considered an easement (Justice Alito) when the Fifth Amendment was adopted. Justice Kavanaugh suggested that the nursery could win under NRLB v. Babcock & Wilcox, 351 U.S. 105 (1956) without relying on a broad “right to exclude” because the California law did not require a showing that alternative means of communication with workers does not exist. However, Cedar Point’s counsel seemed reluctant to accept that lifeline, apparently preferring that the Court adopt a broader property rights approach.Counsel for the State of California argued that a per se rule was inappropriate, urging that the courts engage in an ad hoc inquiry concerning the degree of intrusion.

  7. The National Labor Relations Board 2019 Year End Review: An Overview of Major Developments in Labor Law

    McNees Wallace & Nurick LLCAdam SantucciMarch 2, 2020

    A tension often arises between employer rights, including those rights that arise under other laws, and the prohibition on interfering with employee rights under the Act.In 1956, the United States Supreme Court explained in Nat’l Labor Relations Bd. v. Babcock & Wilcox Co., 351 U.S. 105 (1956), that an employer may prohibit non-employee distribution of union literature on company property if (1) there are other available channels of communication that will enable the union to reach employees with its message and (2) the employer also prohibits other forms of distribution by non-employees. In other words, an employer cannot discriminate against unions by restraining their right to distribute union literature or solicit members on company property, while allowing other non-employees to engage in that sort of behavior.

  8. Access to Private Property: Labor Board Rules Girl Scout Cookies and Union Protesters are Different

    Jackson Lewis P.C.Philip B. RosenSeptember 17, 2019

    Board’s Prior Standard and Judicial Criticism of ItIn Babcock, the Supreme Court held that an employer has a property right to exclude union agents from its premises. 351 U.S. 105 (1956). However, the Supreme Court recognized two exceptions to the employer’s property right:Where there is an inability by the union to access employees by other reasonable means; andWhere property rights are enforced discriminatorily (which was the exception at issue in Kroger).

  9. NLRB Continues to Define Employer Ability to Protect Property and Access; Overturns Union-Friendly Precedent

    BeneschW. Eric BaisdenSeptember 10, 2019

    Similar to its decisions earlier this summer, the Board relied heavily on long-term precedent to overturn the Board’s subsequent expansion of precedent. In NLRB v. Babcock, 351 U.S. 105 (1956) (upheld in Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992)), the Supreme Court generally found an employer had the right to restrict access to its property, subject to two narrow exceptions: inaccessibility (which was not discussed in Kroger Mid-Atlantic) and discrimination. Unfortunately, the Babcock & Wilcox decision did not define the scope of “discrimination.”

  10. NLRB: Employers can bar nonemployee access to their facility's “public space” for promotional or organizational activity

    Frost Brown Todd LLCJeffrey S. ShoskinJuly 1, 2019

    BackgroundIn 1956, the Supreme Court established the standard governing nonemployee access to an employer’s property. NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956). Distilled to its essence, an employer could deny access to its property by nonemployee union organizers with two exceptions: the union has no other reasonable means of communicating its message to employees (the “inaccessibility” exception) and the employer discriminates against the union by permitting other outside groups access to its property (the “discrimination” exception).