In a recent decision, the Maryland Court of Appeals sided with NFIB Small Business Legal Center in allowing a business to sue union activists for disruptive in-store protests. The union had argued that it could not be sued for trespass or nuisance under state law on a controversial theory that the National Labor Relations Act should be construed as preempting state law claims. But as we argued in our friend of the court brief, such an interpretation would not only represent an unprecedented expansion of the NLRA, but would raise serious constitutional problems in effectively allowing union operatives an uncontested right of access to private commercial property.
This decision comes on the heels of NFIB’s recent victory over OSHA’s illegal “Union Walk-Around Rule,” which had purported to authorize union officials to accompany OSHA on workplace inspections. This decision was even more significant because it made clear that federal law does not inhibit the prerogative of private employers to protect their property rights against meddling union actors. While federal law unquestionably requires employers to allow employees to engage in concerted activities to improve workplace conditions, and prohibits employers from acting coercively to discourage unionization efforts, employers are entitled to exercise their rights under state law to eject trespassers and to sue third parties who may interfere with business operations.
The takeaway from both these lawsuits: if you are facing a union-led corporate campaign or other unionization efforts, its highly advisable to work closely with a trusted labor attorney.