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NLRB Expands Employers' Rights To Prohibit On-Site Union Solicitation By Nonemployees

On June 14, 2019, the National Labor Relations Board (the “Board”) ruled in UPMC Presbyterian Shadyside, 368 NLRB No. 2 (June 14, 2019), that employers may lawfully prohibit nonemployee union organizers from conducting organizing activity in areas of an employer’s property open to the public. The holding overturned the Board’s longstanding “public space” doctrine, under which employers were required to permit nonemployees to conduct promotional or organizing activity in public areas on employer property.

Background

In NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), the Supreme Court established the standard for nonemployee access to employer property for union organizing purposes. Under Babcock, employers generally may prohibit nonemployee union-related solicitation on their property, with two narrow exceptions.
 

• Pursuant to the “inaccessibility” exception, employers must permit nonemployee organizers on employer property where this is the only reasonable means of communicating with employees (e.g., remote logging camp, mountain resort).

• Under the “discrimination” exception, an employer must allow nonemployee union organizers to solicit on-site if the employer permits other outside groups to use its property for solicitation purposes unrelated to the employer’s business.

In Montgomery Ward & Co., 256 NLRB 800 (1981), enfd. 692 F.2d 1115 (7th Cir. 1982), the Board established another exception to the Babcock rule – the so-called “public space” doctrine. The “public space” exception requires employers that make portions of their property open to the public – such as restaurants and cafeterias – to permit nonemployee union organizers to solicit in such spaces, as long as the organizers are not being “disruptive.”

The UPMC Decision

In UPMC, the Board overturned the “public space” exception, holding that a hospital did not violate the National Labor Relations Act (“NLRA”) by prohibiting nonemployees from engaging in union organizing activity in a hospital cafeteria open to employees, patients, patient visitors, and other hospital patrons. The organizers sat with hospital employees at a cafeteria table, discussing union organizing campaign issues over lunch, while displaying union flyers and pins on the table. Hospital management instructed the organizers to leave after receiving complaints from an employee and a nonemployee cafeteria patron.

The Board rejected the Montgomery Ward “public space” exception, holding that the fact that the hospital made its cafeteria open to the public did not require the hospital to permit nonemployee union solicitation in the cafeteria. In support of its holding, the Board relied on multiple circuit court decisions finding the Board’s application of the “public space” exception erroneous because it “ignor[ed] the principles of Babcock.”

Turning to the facts at issue, the Board found the hospital’s removal of the nonemployee organizers lawful because neither of the Babcock & Wilcox nonemployee access exceptions established by the Supreme Court applied in the UPMC case. First, the union had reasonable “nontrespassory means” of communicating with employees, so the “inaccessibility” exception did not apply. Similarly, the Board rejected union attempts to invoke the “discrimination” exception because there was no evidence that the hospital “knowingly allowed any other promotional or organizational activity by non-employees on its premises.”

The NLRB ruled that it will apply the UPMC decision retroactively to currently-pending cases, reasoning that “[a] general no-solicitation/no-distribution practice applicable to all third parties that is valid under prior Board law will also be valid under our new standard,” and “[t]hus, no party that has acted in reliance on the Board’s previous standard will be found to have violated the Act as a result of the retroactive application” of the UPMC standard.

Recommendations For Employers

Notably, a few weeks before the UPMC decision, the Board announced plans to address the issue of union access to employer property through proposed rulemaking later this year. In the meantime, employers should continue to uniformly apply nonemployee access policies to all outside organizations in a nondiscriminatory manner.

Finally, it is important to note that the UPMC holding (as well as Babcock) applies only to union solicitation by nonemployees. Under established law, current employees enjoy much broader rights to engage in union organizing activity in the workplace.

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If you have any questions about nonemployee union access to employer property, or any other labor relations issues, please feel free to contact one of our experienced labor attorneys, who regularly assist employers with all types of union-related issues.