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In the latest in a series of business-friendly decisions, the
National Labor Relations Board (NLRB) has ruled that employers may legally
bar union solicitation by nonemployees on company property that is
otherwise open to the public. [UPMC N.L.R.B., 368 N.L.R.B. No. 2, Opinion
6/14/19.] The NLRB’s
3-1 ruling expressly overturns a nearly 40 year old Board
precedent, referred to as the “public space exception”. Under that now
reversed precedent, nonemployee union organizers could not be denied access
by employers to cafeterias and restaurants open to the public if the
organizers used the facility in a manner consistent with its intended use and
were not disruptive.
The case began with a 2013 incident in which two union
organizers met with six employees in the cafeteria of a Pennsylvania hospital
to discuss organizing a union campaign. Union flyers and pins were displayed
on the tables at which the union representatives were sitting. The hospital
cafeteria was accessible to hospital employees, patients, their families and
other visitors.
After an employee complained of the union solicitation,
hospital security requested to see the identification of the union
representatives, and subsequently requested they leave the premises. The two
women refused to leave, and the head of security then called 911. Six police
officers arrived and escorted the union representatives from the cafeteria.
While the hospital cafeteria was open to the public, it had been the
hospital’s regular practice to remove nonemployees who were engaged in
promotional activity, including soliciting or distributing literature, in or
near the cafeteria. Prior to the union incident, the hospital had previously
escorted off the property a group soliciting for money, as well as a
religious group engaged in solicitation.
In ruling that the hospital did not engage in an unfair labor
practice by ejecting the union representatives, the NLRB held that because
the hospital uniformly prohibited any groups or individual from soliciting on
its property. “[w]e therefore hold that an employer may prohibit nonemployee
union representatives from engaging in promotional activity, including
solicitation or distribution, in its public cafeteria so long as it applies
the practice in a nondiscriminatory manner by prohibiting other nonemployees
from engaging in similar activity.”
The decision is being applauded by business groups for giving
employers more control over who can access company property. However, the
Board’s sole dissenting member has blasted the majority’s decision as
inconsistent with Supreme Court precedent, and stating of the hospital’s
actions “[i]f this was not [anti-union] discrimination, then it is hard to
know what is.”
While this latest decision is welcomed by employers, companies
should always proceed cautiously and seek legal counsel before taking actions
concerning union activity or any other situations potentially implicating
protected concerted activity under the National Labor Relations Act (NLRA).
Other significant ruling by the majority GOP NLRB may be on
the horizon. Back in 2014, under the Obama administration, the then
Democrat-controlled NLRB issued a controversial ruling that declared
employers, generally, cannot prohibit employees from using a company’s e-mail
system for union organizing purposes or other activities protected by the
NLRA. The current NLRB has sought to revisit that decision, and possibly
overturn it, by soliciting public comment.
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