Keep Out: NLRB Allows Further Restrictions of Union Access to Employers’ Property

June 26, 2019Alerts

In a June 14, 2019 decision, the National Labor Relations Board clarified whether an employer may limit nonemployee union organizers from entering the employer’s private property. UPMC and SEIU, 368 NLRB No. 2. In doing so, the NLRB overruled a precedent held for nearly four decades that allowed nonemployee union organizers to enter public spaces on an employer’s private property to convene with employees during union organizing activity. Employers may now prohibit nonemployee union representatives’ access to the employer’s private property, including public spaces.

In February 2013, two nonemployee union representatives met with a group of hospital employees in the cafeteria of the UPMC Presbyterian Hospital (“hospital”) in Pittsburgh, Pennsylvania, to discuss union organizational campaign matters and distribute union-related materials. The hospital permitted only patients, their families and visitors, and employees to use the cafeteria. Hospital security received two complaints about the presence of the unpermitted nonemployee union representatives and following hospital protocol, security asked the union representatives to leave the hospital. When the union representatives refused to leave, hospital security requested the assistance of the police to escort the union representatives from the hospital. The union representatives subsequently filed charges alleging unfair labor practices against the hospital, arguing their presence for the purpose of solicitation and promotional activities is permitted in the hospital cafeteria, as the cafeteria is a public space.

The National Labor Relations Act provides employees “the right to form or join unions; engage in protected, concerted activities to address or improve working conditions; or refrain from engaging in these activities." It is an unfair labor practice for an employer to interfere with this right.

Case law developed dictating where nonemployee union organizers may engage in solicitation and promotional activities on an employer’s private property. The U.S. Supreme Court set forth the standard that an employer may limit nonemployee union organizers’ access to the employer’s property unless one of two narrow exceptions exists:  (1) inaccessibility: there are no other available channels with which nonemployee union organizers may communicate with employees; or (2) discrimination: the employer directly discriminates against the nonemployee union organizers by allowing similar conduct by others on the property. NLRB v. Babcock & Wilcox Co., 315 U.S. 105 (1956). In a later opinion, the Court deemed the burden on the nonemployee union organizer to show such circumstances exist meeting one of the narrow exceptions. Sears Roebuck & Co. v. San Diego County District Council of Carpenters, 436 U.S. 180, 205 (1978).

The NLRB has generally applied the Babcock standard to cases involving nonemployee union organizers accessing employers’ private property; however, in 1982, the NLRB began applying an additional public place exception allowing nonemployee union organizers access to public spaces on employer property, such as cafeterias, so long as the nonemployee union organizers are not disruptive. Ameron Automotive Centers, 265 NLRB 511, 512 (1982); Montgomery Ward & Co., 256 NLRB 800, 801 (1981), enfd. 692 F2d 1115 (7th Cir. 1982). This public space exception essentially eliminated the Babcock standard of “limiting nonemployee union access to private property and found discrimination based solely on the fact that nonemployee union organizers were excluded, without regard to whether the employer permitted any other nonemployees to engage in the same solicitation or promotional activities engage in by the union organizers in the public cafeteria area.” UPMC, 368 NLRB No. 2 at 3. This public space exception was rejected by several circuit courts, yet had remained the precedent enforced by the NLRB until last week.

Reversing its course, the NLRB overruled the previous long-held public access exception. UPMC, 368 NLRB No. 2 at 4. “We agree with the judicial criticism of extant [NLRB] precedent permitting nonemployee union representatives to gain access to public areas on private property in contravention of Babcock’s principles.” UPMC, 368 NLRB No. 2 at 4. Going forward, employers now have the right to prohibit nonemployee union representatives from entering their private property, “regardless of whether the area on the employer’s private property in which the union wishes to conduct business is closed or open to the public.” UPMC, 368 NLRB No. 2 at 4. The employer has no duty to allow the nonemployee union representatives use of the employer’s facility for promotional or organizational activities, even if the activity is not disruptive. UPMC, 368 NLRB No. 2 at 4. Rather, the employer may enforce rules and practices that regulate the employer’s property, so long as the practices do not violate the Act nor fall within the Babcock exceptions. UPMC, 368 NLRB No. 2 at 4.

The Act only requires the employer not interfere, discriminate, restrain, or coerce the employee; the employer need not provide a facility for the organization “when other means are readily available.” UPMC, 368 NLRB No. 2 at 4. The Babcock exceptions enable employers to restrict nonemployee union representatives from their private property provided (1) the nonemployee union representatives have accessibility to communicate with the employees and (2) the employer does not discriminate against the nonemployee union representatives by allowing other groups to come on property. UPMC, 368 NLRB No. 2 at 4.

The takeaway for employers is that you now have the right to restrict union access to your private property, including public areas, by equally applying and enforcing a well-drafted non-solicitation/non-distribution rule.