News

NLRB Limits Non-Employee Access to Workplace

June 20, 2019

By Noah R. Jordan, Esquire

On June 14, 2019 the National Labor Relations Board (NLRB) issued a Supplemental Decision and Order limiting the ability of private sector unions to speak with, and attempt to organize employees on an employer’s premises.  In UPMC, 368 NLRB No. 2, the Board held that “an employer does not have a duty to allow the use of its facility by nonemployees for promotional or organizational activity,” and that “absent discrimination between nonemployee union representatives and other nonemployees…the employer may decide what types of activities, if any, it will allow by nonemployees on its property.”

The case involved union organizers working for SEIU meeting with a group of UPMC employees in the UPMC Presbyterian Hospital cafeteria, located on the hospital’s 11^th floor.  The union representatives ate lunch with the employees while discussing union organizing campaign issues as well as a recent settlement involving UPMC.  They also displayed union pins and flyers, attracting other employees to stop by the table and ask questions.  A manager and an employee complained separately to the Security Operations Manager who, at the behest of his supervisor, asked the union representatives for identification and after confirming that they were not employees, told them that they had to leave since only employees, patients, and their family and visitors were permitted use of the cafeteria.  The security manager did not similarly require the friend of another employee, who also was dining in the cafeteria, to leave.  When the union representatives refused to leave, the police were called and escorted the union representatives out of the cafeteria.  UPMC’s practice had been to eject/remove nonemployees engaged in promotional activities.

In NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), the Supreme Court held that while employers could not restrict the rights of its employees to discuss organizing with one another, similar rights were not owed to nonemployees.  However, the Court recognized two exceptions to this rule.  First, the “inaccessibility exception” held that if a union had no alternative, reasonable means of communicating with employees, the employer must allow the union to use its premises for that purpose.  The second exception, known as the “discrimination exception,” essentially held that employers could not discriminate against unions by allowing use of its premises for reasons other than organizing employees and otherwise engaging in Section 7 activities.  Expanding on this holding, the Board created an additional exception in Ameron Automotive Centers, 265 NLRB 511 (1982), permitting unions to use a portion of an employer’s facility that is open to the public, like a cafeteria, so long as that use was not disruptive.

In issuing its ruling in UPMC, the Board explicitly overruled precedent established in Ameron Automotive Centers, and returned to the standard in Babcok & Wilcox Co.  Specifically, the Board held that “to the extent that Board law created a ‘public space’ exception that requires employers to permit nonemployees to engage in promotional or organizational activity in public cafeterias or restaurants absent evidence of inaccessibility or activity-based discrimination, we overrule those decisions.”  After finding that the UPMC employees were not inaccessible to the union representatives by other “reasonable nontrespassory means,” the Board reviewed the facts solely under the “discrimination exception.”  In so doing, the Board narrowed the circumstances under which that exception can be applied.  The Board specifically overruled all “precedent holding that discrimination can be established merely by showing that nonemployee union representatives were denied access to a public area within private property, without the Board considering the kind of ‘nondisruptive’ activity they were engaged in and whether the employer had permitted similar activity by other nonemployees.”  Applying this to the facts of the case, the Board held that UPMC did not violate the Act by ejecting the SEIU organizers.

Why This is Important to You:

With this holding, the Board overrules yet another long-standing precedent seen as providing protections for unions, continuing its recent lurch toward a more pro-management/employer view of the law.  While private sector unions still have the ability to gain access to employees while at work, the circumstances under which they can do so are more limited than at any point since the ruling in Babcock & Wilcox Co. was issued.  Thus, unions will have to resort to alternative strategies to reach out to, and connect with, employees they wish to organize.