The National Labor Relations Board (“NLRB”) recently ruled that an employer can ban nonemployee union representatives from soliciting employees in public spaces within its facilities.  The June 14 decision overturned a decades-old “public spaces” rule that permitted nonemployee union organizers to engage in solicitation in the public spaces of a company.

Background

Two union representatives met with UPMC employees at UPMC’s cafeteria.  They ate lunch, discussed union organizational campaign matters, and handed out union flyers and pins.  Based on UPMC’s policy and practice to remove nonemployees engaged in solicitation in the cafeteria, UPMC told the union representatives they had to leave.   After refusing to leave, police escorted the union representatives from the cafeteria.  A complaint to the NLRB followed.

Supreme Court Precedent

The NLRB first looked to relevant U.S. Supreme Court precedent.  In NLRB v. Babcock & Wilcox Co., the Court indicated the general rule is that an employer may deny access to its property by nonemployee union organizers unless (1) there are no other channels of communication to reach employees with their message or (2) the employer discriminates against the union by allowing other distribution or solicitation.

NLRB Precedent

In previous cases, the NLRB had expanded the holding of Babcock by creating a third “public spaces” exception to the general rule.  Specifically, prior NLRB decisions found that an employer could not restrict access to public spaces (such as a cafeteria) for nonemployee union organizers who engage in solicitation, as long as they are not disruptive.

NLRB’s New Rule

Noting that its “public spaces” exception had been rejected by multiple federal courts, the NLRB expressly overruled it in this case, and reaffirmed the two exceptions in Babcock.  The NLRB found that an employer does not have a duty to allow the use of its facility, even public spaces, by nonemployees for promotional or organizational activity.

Applying the rule to the instant case, the NLRB found that (1) there were other channels by which to communicate with UPMC’s employees and (2) UPMC did not discriminate against the union because, while it allowed employees’ friends and family into the cafeteria for meals, it turned away multiple other outside entities who attempted to solicit employees.

Takeaway

An employer may deny nonemployee union organizers access to a public space on its property unless (1) such access is the sole channel of communication to reach employees, or (2) the employer allows other nonemployees to distribute or solicit on its property.