The Employee Free Choice Act (EFCA) continues to be one of the most divisive pieces of legislation floating around Congressional offices. Democrats claim that it is too hard for unions to organize workers. Republicans argue that unions shouldn’t receive preferential treatment and that EFCA would leave employers defenseless against union organizers. While this debate is an important one, the most basic question remains unanswered. Is it legal?

Most versions of EFCA contain workplace access language; a clause which seeks to give union organizers rights usually reserved for stakeholders in a company, workers and employers. Workplace access guarantees union representatives admission to all employer-employee meetings that pertain to unionization. Additionally, employers would be required to aid union efforts by allowing organizers to hold meetings on company property. 

At first glance, this appears to be a clear infringement of a company’s work-site and property laws. To authorize self-serving interest groups, no matter how noble their cause, special access to a businesses workplace violates innate property rights. However, this is not a universal belief and is one that must be tested in the court of law, and in 1992 it was. 

The Supreme Court ruled in Lechmere, Inc. v. National Labor Relations Board that non-employee union organizers were not allowed to solicit support on private property, except in the case where no reasonable alternatives exist. Translation: union organizers had no inherent right to company space.

A closer look at Lechmere, Inc. v. National Labor Relations Board illustrates the necessity for property rights and how the EFCA is a violation of said rights.  

Lechmere Inc. was a retail company that owned a store in a shopping mall and a partial stake in the mall’s parking lot. In an attempt to organize Lechmere’s employees, a retail clerk’s union placed pro-union pamphlets and handouts on mall employee’s cars. When Lechmere management learned of the retail union’s attempt to organize their employees, they forced union organizers to leave and claimed they were on company property, the parking lot. Lechmere policy was not to allow solicitation of any kind, be it charitable, malicious, or anything in between, on their property. 

Police agreed with Lechmere management and prohibited the union from distributing recruitment materials on Lechmere property, the parking lot. Instead, union organizers had to recruit members from nearby public land, a stones throw away from the parking lot. The retail clerk union saw nothing wrong with their actions and appealed to the National Labor Relations Board (NLRB). The union argued that Lechmere was violating the National Labor Relations Act (NLRA) of 1935, the most important union legislation to date.

The NLRA guarantees unions the right to organize. Section 7 states, “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain 

collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

To strengthen Section 7, Section 8 of the NLRA states “it shall be unfair labor practice” for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.”

The NLRB found that Lechmere’s prohibitive actions were, in fact, a violation of Section 8 of the NLRA. Predictably, Lechmere brought the case to court suing the NLRB. Slowly, the case made its way through the judicial system when it finally reached the Supreme Court in 1992. 

In a 6-3 decision, the Supreme Court ultimately sided with Lechmere for three key reasons. The court wrote that the NLRA “confers rights only on employees, not on unions or their nonemployee organizers.” The court reaffirmed private property rights and saw the dangers in guaranteeing third parties, which may not have a company’s best interest in mind, access to company property. Furthermore, the NLRA, although guaranteeing employees the right to organize, does not require the employer to facilitate this process, simply not obstruct it.

The court continued, writing that Section 7 of the NLRA would only apply to nonemployee union organizers when “the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels.” If unions had no other means to contact potential members, than workplace access legislation would be necessary to insure that Section 7 is followed.

However, the union failed to prove that there were any “unique obstacles” that prevented reasonable union access to the employees. When the NLRA was written, in the 1930s, it was feasible that a union not be able to reach employees. In the twenty-first century, it is hard to imagine a scenario in which employees are “inaccessible.”

Given the Lechmere v. NLRB ruling, it is surprising that EFCA is still being considered for law. If the Supreme Court found it illegal for unions to place pamphlets on worker’s cars, why can EFCA force companies to hand over rooms to union organizers for stump speeches? How can companies be forced to grant union reps access to company meetings?

Just like other aspects of EFCA, governmental arbitration for example, workplace access infringes on company rights and attempts to wedge unions between employers and their workers. While companies face increasing taxes and relentless demonization by politicians, EFCA now looks to strip companies of their property rights. Such a hostile environment is one that is anti-growth, polarizing, and, not to be overlooked, illegal. 

This brief was authored by Christopher Prandoni. For more information, visit the Alliance for Worker Freedom at 

The Alliance for Worker Freedom (AWF) was founded in 2003 as a non-partisan organization dedicated to combating anti-worker legislation and to promote free and open markets. For more information or to arrange an interview, please contact (202) 785-0266 or email [email protected].