Employers No Longer Required to Grant Union Representatives Access to Public Areas

The National Labor Review Board Has Reversed Course on Whether Employers Must Allow Union Representatives to Use Their Public Areas

The National Labor Review Board (NLRB or Board) has reversed course on whether employers must allow union representatives to use their public areas. In UPMC Presbyterian Shadyside, 368 NLRB No. 2 (June 14, 2019), the NLRB ruled that an employer does not have a duty to allow the use of its facility by nonemployees for promotional or organization activity, unless the union has no other reasonable means of communicating with workers or the employer discriminates against the union by granting access to similar groups.

Public Space Exception

In NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), the U.S. Supreme Court established the standard that governs nonemployee access when an employer’s property rights conflict with the right of employees to engage in self-organization. The Court emphasized that although no restriction could be placed on the employees’ right to discuss self-organization among themselves (absent a demonstration that a restriction was necessary to maintain production or discipline), “no such obligation is owed nonemployee organizers.” However, it also created two exceptions, writing: “It is our judgment . . . that an employer may validly post his property against nonemployee distribution of union literature if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message [ (the “inaccessibility” exception] and if the employer’s notice or order does not discriminate against the union by allowing other distribution” [the “discrimination” exception].

In addition to applying the Babcock standard, the NLRB created an additional exception where nonemployee union organizers seek access to a portion of the employer’s private property that is open to the public, such as a cafeteria or restaurant. In Ameron Automotive Centers, 265 NLRB 511, 512 (1982), the Board stated that in such cases the “Babcock & Wilcox criteria need not be met since nonemployees cannot in any event lawfully be barred from patronizing the restaurant as a general member of the public.” Accordingly, 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.

Union Organizers Ejected from Hospital Cafeteria

On February 21, 2013, union representatives Sarah Fishbein and Amber Stenman entered the University of Pittsburgh Medical Center (UPMC) cafeteria, which is located on the 11th floor of the Presbyterian Hospital, and met with a group of at least six employees. The nonemployee union representatives sat with the employees at two tables, ate lunch, and discussed union organizational campaign matters, including a recent NLRB settlement. Some other employees stopped at the tables during the time the union representatives were in the cafeteria.

During this time, Security Operations Manager Gerald Moran received two reports—one from a manager and another from a complaining employee—that nonemployees were soliciting in the cafeteria and that union flyers were being distributed. After speaking with his supervisor, Moran went to the cafeteria and approached the tables where the group was sitting. Moran asked the union representatives, whom he did not recognize as employees, for identification and inquired what they were doing there. Moran also asked employees seated at the tables for their identification. Union Representative Stenman said they were having lunch with some employees and talking about the Union. Moran told Stenman that she and Fishbein had to leave because the cafeteria was only for the use of patients, their families and visitors, and employees. Earlier, Stenman had tried to talk about the Union to a woman sitting behind them, and the woman had said that she was not an employee and was just waiting to have lunch with her friend, who worked there. Stenman asked Moran if that woman would have to leave, too, and Moran said, “Maybe, but I’m dealing with this right now.” Stenman and Fishbein refused to leave, and Moran then called 911. Six police officers arrived and escorted the union representatives from the cafeteria.

The cafeteria does not have a sign indicating who may patronize it. In addition, the hospital does not actively monitor who is using the cafeteria. However, it does respond to reports to the Security Department of solicitation by nonemployees and has previously removed nonemployees who engaged in promotional activity, including soliciting or distributing, in or near the cafeteria.

NLRB Limits Union Access to Employers’ Premises

In UPMC Presbyterian Shadyside, the NLRB abandoned the precedent established in Ameron Automotive Centers and eliminated the “public space” exception. Accordingly, it held that UPMC had not unlawfully ejected the nonemployee union organizers from its hospital cafeteria.

In support of its decision, the Board acknowledged that the public space exception had been rejected by several federal courts of appeal and conflicted with the Supreme Court’s analysis in Babcock. “Therefore, 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,” it held.

With regard to the new standard, the Board described it as follows:

Accordingly, we find that an employer does not have a duty to allow the use of its facility by nonemployees for promotional or organization activity.  The fact that a cafeteria located on the employer’s private property is open to the public does not mean that an employee must allow any nonemployee access for any purpose.  Absent discrimination between nonemployee union representatives and other nonemployees –i.e., ‘disparate treatment whereby rule or practice a property owner’ bars access by nonemployee union representatives seeing to engage in certain activity ‘while permit[ting] similar activity in similar relevant circumstances’ by other nonemployees–the employer may decide what types of activities, if any, it will allow by nonemployees on its property.

The NLRB further stated that the standard would be applied retroactively to all pending cases. Applying the new test to the facts of the case, the Board found that since the hospital’s employees were not inaccessible by reasonable nontrespassory means, the only remaining issue was whether the Babcock discrimination exception applied.

The Board went on to conclude that there was no violation because there was no evidence that the UPMC permitted any solicitation or promotional activity in its cafeteria. “[T]he nonemployee union representatives, who were meeting with a group of employees and displaying, on cafeteria tables, union materials that were being distributed to others in the cafeteria, were treated no differently than other third parties who were reported to be soliciting or distributing in the hospital cafeteria,” the Board explained. “There is no evidence that the Respondent has knowingly allowed any other promotional or organizational activity by nonemployees on its premises. In fact, the evidence shows the opposite: the Respondent has removed nonemployees when informed that they were engaged in solicitation or promotion of their organizations in the cafeteria.”

Key Takeaway for Employers

The NLRB’s decision in UPMC Presbyterian Shadyside is good news for New Jersey employers, particularly those with cafeterias and other public spaces. Under the NLRB’s new standard, employers are free to adopt a non-solicitation policy to exclude nonemployee union organizers from such areas provided that organizers have other reasonable means of communicating with employees and the employer does not discriminate by treating unions differently under the policy.

If you have any questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Scott Heck, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.