Labor & Employment Law Daily NLRB says nonemployee union reps can be banned from public space within employer facility
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Wednesday, June 19, 2019

NLRB says nonemployee union reps can be banned from public space within employer facility

By Ronald Miller, J.D.

Overturning a nearly 38-year old precedent, the NLRB ruled that employers may deny nonemployee union representatives access to areas of their property open to the public, like cafeterias or restaurants, to solicit for or promote union membership.

In a four-member decision, a divided NLRB ruled that employers may ban union representatives from promoting their union in a public space within the employer’s facilities if those representatives aren’t employees. 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, the Board overruled those decisions. However, the Board agreed with an administrative law judge that the employer acted unlawfully by requiring employees who were meeting with nonemployee union organizers to produce identification. Member McFerran filed a separate opinion dissenting in part (UPMC and its Subsidiary, UPMC Presbyterian Shadyside, June 14, 2019).

On August 27, 2018, the Board issued a decision resolving most of the issues in this case, UPMC and its Subsidiary, UPMC Presbyterian Shadyside . However, the Board severed and retained three issues for further consideration: (1) whether the employer unlawfully ejected nonemployee union organizers from its hospital cafeteria; (2) whether the employer engaged in unlawful surveillance of the employees who were meeting with the organizers in the cafeteria, and (3) whether it unlawfully required employees who were meeting with nonemployee union organizers to produce their identification.

Union representatives in hospital cafeteria. On February 21, 2013, two nonemployee union representatives entered the cafeteria located on the hospital’s 11th floor, and met with a group of employees. The representatives ate lunch with the employees and discussed union campaign matters. Other employees stopped at the tables during the time the union representatives were there. Union flyers and pins were displayed on the tables at which the union representatives were sitting. At least one off-duty employee passed out some flyers to others in the cafeteria.

Meanwhile, the employer’s security manager received two reports that nonemployees were soliciting in the cafeteria and that union flyers were being distributed. The security manager went to the cafeteria and approached the tables where the group was sitting. He asked the union representatives for identification and inquired what they were doing. He also asked employees seated at the tables for their identification. The security manager told the union representatives that they had to leave because the cafeteria was only for the use of patients, their families and visitors, and employees. When the representatives refused to leave, the security manager called 911. Six police officers arrived and escorted the union representatives from the cafeteria.

Approximately one month after the incident, the security manager received reports that two individuals were distributing literature in front of the cafeteria. Those individuals were escorted from the property.

Enforcement of no-solicitation and no-distribution consistent. There was nothing posted in the cafeteria indicating who may patronize it. The employer does not actively monitor who is using the cafeteria, but does respond to reports of solicitation by nonemployees. The employer’s practice has been to remove nonemployees who are engaged in promotional activities in and near the cafeteria. On two occasions, the employer has ejected individuals from the cafeteria after receiving reports that they were soliciting for money.

Restriction on nonemployee access. In NLRB v. Babcock & Wilcox Co., the Supreme Court ruled that “an employer may validly post his property against nonemployee distribution of union literature” if the union has other available channels of communication to reach employees or the order discriminates against the union by allowing other distribution. While the Board has generally applied the Babcock standard, with its inaccessibility and activity-based discrimination exceptions, it has created an additional exception when nonemployee organizers seek access to a portion of an employer’s private property that is open to the public, such as a cafeteria or restaurant. Specifically, the Board has held 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.

“Public space” exception overruled. Finding that an employer does not have a duty to allow the use of its facility by nonemployees for promotional or organizational activity absent evidence of inaccessibility or activity-based discrimination, the NLRB overruled Board law that created a “public space” exception. The Board observed that the fact that a cafeteria located on the employer’s private property is open to the public does not mean that an employer must allow any nonemployee access for any purpose. 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.

Retroactive application of new standard. In accord with its usual practice, the Board determined that it would apply the new standard retroactively “to all pending cases in whatever stage.” The Board could not envision any ill effects that would be wrought by applying the new standard retroactively. It noted that a general no-solicitation/no-distribution practice applicable to all third-parties that is valid under prior Board law will also be valid under the new standard. Thus, no party that has acted in reliance on the Board’s previous standard will be found to have violated the NLRA as a result of the retroactive application of the new standard.

Accordingly, the Board found that the employer did not violate the Act by ejecting union organizers who were using the cafeteria to engage in unpermitted activity.

Surveillance in cafeteria. Moreover, the Board reversed the ALJ’s finding that the employer engaged in unlawful surveillance of the union organizers and employees in the cafeteria. Here, there was no evidence that security personnel stayed in close proximity to the employees in the cafeteria. Further, in this instance, security was alerted to the union presence and promotional activity in the cafeteria by other hospital personnel. Because the employer’s observation of the employees’ activities was not out of the ordinary, this complaint allegation was dismissed.

Partial dissent. Member McFerran dissented from that part of the NLRB opinion permitting an employer to expel union representatives from a hospital cafeteria that is open to the public, based entirely on their union affiliation. According to the dissent, the Board has long recognized that the Supreme Court’s rulings in NLRB v. Stowe Spinning and Babcock & Wilcox stand for the proposition that “where it is shown that restrictive [access] rules . . . flow not from the employer’s right to protect his legitimate property interests, but rather from his desire to obstruct his employees’ statutory right of self-organization, the immunity otherwise accorded him in this regard is forfeited.

Thus, McFerran argued that while the Board’s longstanding law makes clear that it would be unlawful to bar union organizers from a cafeteria simply for talking about the union, the Board’s new conceptualization of the discrimination exception now clearly permits such exclusion.

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