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In 'Restoring Unions in America by Reforming Nonemployee Union Representative Access Rights to Employer Property,' Jesse Dill criticizes some of the proposals I have made in previous work regarding labor law’s analysis of nonemployees’ right to access employer property and, more generally, workplace federalism. This piece is a rebuttal to that criticism.Nonemployees’ ability to access a worksite to communicate with employees remains a significant issue in labor law. Such communications are often a prerequisite to the core right of the NLRA: the ability of employees to choose whether to engage in collective action. As Dill and I agree, the status quo following Lechmere falls woefully short of providing the access needed for employees to truly enjoy this right. How to address that shortcoming is where we differ.Despite opposition from Dill and others, I remain convinced that expanding states’ role in enforcing labor law is the wrong approach. Although certain states would expand access, many others would not, and the overall effect would be to further complicate an already complex analysis. A better solution would be to reduce the reliance on state law, whether through my proposed rule or - even better - federal legislation that overturned Lechmere. This legislation, however, must provide broad access, including access to property that is not typically accessible to the public. It is only by giving employees at virtually all worksites the opportunity to communicate with nonemployees that the right to collective action will have any relevance for most employees.
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