On the Greatest Property Transfer that Wasn’t: How the National Labor Relations Act Chose Employee Rights and the Supreme Court Chose Property Rights

Abstract

This article addresses the tension between employee organizational rights, protected under the National Labor Relations Act of 1935 (NLRA), and the property rights of employers. Though the NLRA does not mention employer property rights at all, the Supreme Court has injected an almost absolute form of property rights into the balance, often resulting in skewed results. The particular issue that my paper addresses is the complete lack of judicial consideration of what appears to be a statutory right of access to all employees to workplaces for the purposes of organizing. The argument examines the NLRA, its purposes and protection, with an eye towards the definition of “employee” in §2(3), which states “The term ‘employee’ shall include any employee, and shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise” This definition is essential to understanding who has a statutory right to engage in organizational activities without fear of employer reprisal. According to my interpretation, the 74th Congress intended for all employees to have the right to engage in “concerted activity for mutual aid or benefit,” and not only for employees of a particular employer. Over the last 75 years, the Supreme Court has greatly limited the organizational rights of employees, and it has never considered the possibility that the NLRA was a radical piece of legislation that created a right of access to employers’ property. Instead, it has treated the employers’ property rights as near absolute, and has looked at organizers through the lens of trespass. My paper makes the argument that this form of analysis has been in error. It then looks at OSHA, which is a statute that has diminished employer property rights in significant respects but been upheld by the Court. The paper compares the two statutes in order to see if the rationales used in OSHA could validly apply to the NLRA. After making the argument that the path the Court took was neither the best path nor warranted under the statutory language, the paper examines some alternative theories that the Court could have used to allow organizers access to employer property. These include the possibility that the NLRA created a limited easement for purposes of organizing; that “employees” on employer property for purposes of organizing should be viewed as a nuisance rather than trespassers; and that through Justice Holmes’ Average Reciprocity of Advantages test, the Court should have allowed organizer access.