Last Friday, the National Labor Relations Board (“the Board”) held that the University of Pittsburgh Medical Center did not violate the National Labor Relations Act (“the Act”) when it kicked union organizers out of its cafeteria who had been grabbing lunch and talking union business with a few workers. In doing so, the Board overturned the “public space” exception, which was established in an early 1980s case.
Before last Friday, this exception allowed nonemployee union organizers to access areas, like an employer’s cafeterias and restaurants, that were open to the public so long as the nonemployee union organizers used the facility in a manner that was consistent with its intended use and were not disruptive. According to the Board, however “[t]o 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.” The Board further found that “an employer does not have a duty to allow the use of its facility 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.”
In issuing this ruling, the Board has returned to a 1956 Supreme Court decision, NLRB v. Babcock & Wilcox Co., which holds that, as a general rule, employers have the right to prohibit nonemployees from promoting unions and union membership on the employer’s private property. In Babcock, the Court, in an attempt to balance an employer’s property rights and the rights of employees to engage in union activity, carved out only two narrow exceptions to this general rule: inaccessibility and discrimination. Simply put, nonemployee union representatives would have the right to use an employer’s private property for union promotion and solicitation if there were no other reasonable means of communicating with employees (inaccessibility) or, if the employer had permitted other nonemployees to engage in similar activities (discrimination). The heavy burden of demonstrating one of these two exceptions was on the union. No “public space” exception was contemplated under the Babcock standard.
Given the Board’s latest decision, and the reasoning for reaching such a decision, it will be more difficult for nonemployee union organizers to gain access to employer public spaces for the purpose of promoting the union or soliciting membership to the union, as long as the employer consistently forbids all other nonemployees from engaging in similar promotional activities in these spaces.
Furthermore, the Board’s latest ruling is retroactive, which means that the new standard will be applied to all pending cases before the Board in whatever stage.
While the Board relied upon evidence that the Hospital in this case had followed a consistent practice of forbidding all nonemployees from engaging in solicitation on the property, the prudent employer should work with experienced legal counsel to draft and adopt an official written policy regarding permitted nonemployee conduct on the employer’s premises.