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eLABORate: NLRB Rules Employers Can Bar Union Solicitation by Nonemployees on Company Property Open to the Public

June 17, 2019

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.