Aron Fischer, Case Comment, Waremart Foods v. NLRB, Is the Right To Organize Unconstitutional?, 113 YALE L.J. 1999 (2004).
(Abstract prepared by James Grimmelmann)
Do union organizers have the right to organize on private property? As
far as federal law is concerned, the answer to that question is clear.
Employee organizers have broad rights under the National Labor Relations
Act (NLRA); nonemployee union organizers have virtually none. Until a
recent decision by the D.C. Circuit, however, there was little reason to
believe that federal law, much less the Constitution, prevented states from
granting workplace access rights to nonemployee organizers. Although
California law appeared to protect labor-related leafleting on private
property, the D.C. Circuit reasoned that to the extent the state law afforded
special protections to labor leafleting, it was content-discriminatory in
violation of the First Amendment. This Comment considers the sweeping implications of Waremart II's
First Amendment analysis and takes a far more deferential view of the
constitutionality of state labor laws.