Skip to main content

NLRB: Employers May Bar Union Solicitation In Their Public Spaces


UPMC - NLRB


Facts:  UPMC, a hospital system in Pennsylvania, ejected two union organizers from its 11th floor public cafeteria where the organizers were meeting with hospital employees to discuss union organizing.  A Security Operations Manager had told the union representatives that the cafeteria was only for the use of patients, their families and visitors, and employees.  However, there was nothing posted either inside or outside the cafeteria indicating who may use it.  There was evidence that UPMC had previously removed non-employees that were engaged in promotional activity.

Analysis:  Notably, the United States Supreme Court issued a ruling in 1956 in NLRB v. Babcock & Wilcox Co. in which the Court held that the National Labor Relations Act ("NLRA") required employers to refrain from interfering, restraining, or coercing employee's exercise of their statutory rights.  However, the NLRA does not require an employer permit the use of its facilities for organizing when other means of communication are readily available.  Prior NLRB precedent had established that employers violate the NLRA when they restrict public cafeteria access for non-employee union organizers who engage in solicitation and other promotional activities but are not disruptive.  (However, the NLRB did recognize that this reasoning had been rejected by many courts.)

In this case, the NLRB found that an employer does not have a duty to allow the use of its facility by non-employees for promotional or organizing purposes.  The fact that the cafeteria was open to the public did not mean that an employer must allow any non-employee access to that public space for any purpose.  (The NLRB clarified that the NLRA only requires that employers refrain from interference, discrimination, restraint, or coercion in the employees' exercise of their own rights.  The NLRA does not require the employer permit the use of its facility for organization when other means are readily available.)  Since it is technically private property, the NLRB found that an employer has a right to promulgate and enforce rules and practices regulating conduct to be carried out in that public space, so long as those rules and practices are facially neutral and enforced in an even and consistent manner.

Decision:  The NLRB found that an employer may bar union solicitation in the pubic spaces of an employer's workplace so long as there is no evidence of disparate treatment.

The Takeaway:  To call this NLRB decision monumental would be an understatement.  With this decision comes the reversal of nearly 38 years of precedent that allowed non-employee union representatives to use public areas of an employer's workplace to solicit or promote their union membership, so long as the actions were not disruptive.  (Notice how the NLRB was so willing to admit that its prior precedent had been criticized by a host of courts across the country.)  As the saying goes, that prior NLRB precedent is now out the window.  With that being said, given the predominantly pro-employer tilt that the NLRB has taken as of late, I would not necessarily call this pro-employer decision a surprise.  The real thing to pay attention to here, for labor supporters, is what other long standing labor friendly precedent might be the next to fall. 

Date:  June 14, 2019

Comments

Post a Comment

Popular posts from this blog

NLRB: Discussion Among Employees About Tip Pooling is Protected Concerted Activity

  This Advice Memorandum from the National Labor Relations Board’s Associate General Counsel, Jayme Sophir, addressed whether employees which discussed and complained about tip pooling at work constituted protected concerted activity. In relevant part, an employer in New York operated a chain of steakhouses.  While tip pooling was in place at these steakhouses, some of the employees objected to it on the grounds that it was not transparent and improperly divided tips among the workers.  Employees were told not to complain or talk to each other about the tip pool and were told that doing so would endanger their jobs.  Despite the employer later attempting to provide some clarity as to how the tips were being divided, rancor still existed among some employees.  At one point, the employees were told by a general manager that some employees that had been talking about the tip pool were “cleared out” and the employer would continue to do so. In the Advice Memorandum, it was noted that emplo
Post a Comment
Read more

What I’ve Been Reading This Week

A few years ago, I remember when the “Fight for $15” movement was taking off around the country.  Lo and behold, it appears that a $15/hour minimum wage is not the stopping point, which should be no surprise.  As the below article notes, New York is aggressively moving to ramp up hourly wage rates even higher.  While all the  below articles are worth a read, I called particular attention to that one. As always, below are a couple article that caught my eye this week. Disney World Workers Reject Latest Contract Offer Late last week, it was announced that workers at Disney World had rejected the most recent contract offer from the company, calling on their employer to do better.  As Brooks Barnes at The New York Times writes, the unions that represent about 32,000 workers at Disney World reported their members resoundingly rejected the 5 year contract offer which would have seen workers receive a 10% raise and retroactive increased back pay.  While Disney’s offer would have increased pa
Post a Comment
Read more

Utah Non-Compete Bill Falters in House

Last month, a non-compete bill sponsored by Representative Brian Greene (Republican from Pleasant Grove) & up for vote in the Utah House failed to make it through the Legislature.  The bill sought to ban enforcement of non-competes if they came after a worker was already employed, given no compensation (such as a bonus or promotion) for signing the non-compete, and laid off within six months.  However, by a 22 - 49 vote, the bill was resoundingly defeated after some business groups lobbied to kill the non-compete bill.  One group in particular, The Free Enterprise Utah coalition, argued that the Utah State Legislature should hold off on any changes to non compete laws in the state until a survey about non competes was done among Utah businesses.  Representative Greene had countered this claim and argued that a survey was not needed to show that the current non compete laws in the states allowed many businesses, including some small high tech companies in the state, to per
Post a Comment
Read more