In a case that started back in February of 2013 – when Security called 9-1-1 and had police escort non-employee union organizers out of the employer’s cafeteria – the Board “modified” decades of its own precedent. Sort of.
Some background. The National Labor Relations Act requires that employers refrain from interference, discrimination, restraint or coercion with respect to employees’ exercise of their right to engage in union activity. In 1956, the United States Supreme Court explained in NLRB v. Babcock & Wilcox Co. that an employer may prohibit nonemployee distribution of union literature on company property if (1) there are other available channels of communication that will enable the union to reach employees with its message and (2) the employer also prohibits other forms of distribution by non-employees. In other words, an employer cannot discriminate against unions by restraining their right to distribute union literature or solicit members on company property, while allowing other nonemployees to engage in that sort of behavior. That would be an unfair labor practice. Babcock & Wilcox is the real, Law of the Land sort of precedent.
However, in 1982, the National Labor Relations Board held that the Babcock & Wilcox criteria do not matter if the nonemployee union activity is on any portion of the employer’s private property that is open to the public, such as a cafeteria. Since then, the Board has held that union organizers cannot be denied access public areas (such as cafeterias), so long as they use it in the way it was intended (to order and eat food) and are not disruptive. Several appellate courts agreed – and several didn’t. However, since then, the Board has consistently found that it is an unfair labor practice for an employer to prohibit nonemployee union organizers from engaging in solicitation and other promotional activities in public areas of an employer’s premises, so long as they are not being “disruptive.”
Until two weeks ago. In UPMC Presbyterian Shadyside and SEIU Healthcare Pennsylvania, the NLRB eliminated the “public space” exception that it created in 1982 and returned to a more pure interpretation of Babcock & Wilcox. Retroactively. That’s good news for employers who have public spaces on their private property.
The NLRB held that an employer has no legal obligation to allow use of its facilities by nonemployees for promotional or organizational activity. “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.” What does this mean for employers? IF there are other channels for the union to reach employees and the employer prohibits all promotional and solicitation activities on its property, the employer may prohibit union activity in public spaces as well (even if it is not disruptive).