An ongoing challenge for many employers faced with union issues is the regulation of its private property. For nearly four decades, the NLRB has ruled that non-employee union organizers have a right to access areas of an employer’s private property that are made open to the public, such as cafeterias. In a recent decision, UPMC Presbyterian Shadyside, the NLRB modified this precedent and narrowed the scope of access for such individuals.
In UPMC, two non-employee union representatives visited a hospital cafeteria. While there, they engaged in solicitation and distributed union literature. UPMC’s security office received a complaint about the activity and sent a manager to investigate. The security manager asked the union representatives to leave. After the representatives failed to do so, the security manager called 911, and six police officers arrived to escort the union representatives from the premises.
The NLRB, in reversing long-standing precedent and finding that UPMC lawfully removed the representatives from the property, cited the 1956 U.S. Supreme Court decision in NLRB v. Babcock & Wilcox Co. that permitted two narrow exceptions to the enforcement of property rights: (1) where there are no other reasonable means for the union to communicate with employees; and (2) where union representatives are denied access in a discriminatory manner.
In 1981, as explained in UPMC, the Board expanded these exceptions and found that “nonemployee union organizers cannot be denied access to cafeterias and restaurants open to the public if the organizers use the facility in a manner consistent with its intended use and are not disruptive.” The NLRB has repeatedly applied the rule, notwithstanding its rejection by several federal courts of appeal.
The NLRB concluded in UPMC that existing Board law provides a “public space” exemption, which is not in the Babcock decision. As such, it modified that precedent and concluded that “an employer does not have a duty to allow the use of its facility by nonemployees for promotional or organizational activity.” The new standard means that non-employee union organizers do not have a specific right to access public areas of an employer’s private property.
Important Note for Employers: The NLRB was careful to emphasize in its UPMC decision that the employer lawfully removed the union organizers because of their conduct – solicitation and distribution – and UPMC demonstrated that conduct was not tolerated with any other non-employee guests. The Babcock discrimination exception still applies. An employer who excludes individuals from public spaces because of their union affiliation, or applies their non-solicitation/non-distribution rules in a discriminatory manner, may find themselves in violation of applicable labor law.