Ballard Spahr LLP

The National Labor Relations Board (NLRB or Board) issued a decision on June 14, reversing nearly 40 years of precedent and granting employers expanded rights to prohibit union activity by non-employees from occurring at the employer’s facility.

Under prior NLRB precedent, employers were required to permit solicitation and other promotional activities by non-employee union representatives in areas open to the general public, so long as their conduct was not disruptive. Failure to allow such activities was deemed to violate Section 8(a)(1) of the National Labor Relations Act (NLRA). However, that so-called “public space” exception was abolished by the NLRB’s recent decision in UPMC and its subsidiary, UPMC Presbyterian Shadyside, 368 NLRB No. 2.

In UPMC, two non-employee union organizers held meetings with off-duty employees in the hospital’s public cafeteria. When complaints were made to security, the union organizers were asked to leave, refused to do so, and ultimately were escorted out by the local police. The union filed an unfair labor practice charge, claiming that this was an unlawful violation of the public space exception. After an administrative law judge sided with the union, UPMC appealed to the NLRB. 

In a 2-1 decision, the NLRB rejected the “public space” exception and ruled in favor of UPMC. The NLRB found that because there was no evidence that UPMC knowingly allowed any other promotional or organizational activity by non-employees on its premises, and because the union organizers had other reasonable means of communicating with employees, the exclusion of the union organizers under these circumstances was not discriminatory. The NLRB also rejected the union’s argument that the hospital’s non-ejection of another non-employee cafeteria patron evinced a discriminatory motive. The NLRB reasoned that the patron was using the cafeteria for the hospital’s intended purpose—to eat lunch—while the union organizers’ activities were far afield from that.

Employers now may prohibit union solicitation from their public spaces, absent evidence of inaccessibility or activity-based discrimination. For employers with public areas, the UPMC decision is a significant victory and represents the latest in the ongoing shift toward employer-friendly standards by the Trump Board. Employers should review and update their “no-solicitation-no-distribution” policies and review whether they have previously allowed or prohibited solicitation or other promotional activities by non-employees generally.