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