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NLRB Strengthens Employer's Ability to Deny Workplace Access to Non-Employee Union Organizers

The National Labor Relations Act (“NLRA” or “Act”) generally protects an individual’s right to engage in union activity, including organizational efforts and protected concerted activity. The NLRA also prohibits employers from certain actions that may have a chilling effect on their employees’ efforts to unionize. A recurring issue regarding employee unionization efforts has been whether an employer can prohibit access to the workplace to non-employee union organizers.

The standard for accessing when an employer’s property rights are in conflict with the right of employee to engage in self-organization was established long ago in NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956). Under Babcock, the general rule was that an employer may deny access to its property by non-employee union organizers, with two exceptions: 1) inaccessibility; and 2) discrimination.

Under the “inaccessibility” exception, if the union had no other reasonable means of communicating its message to employees, the employer’s property interest must yield to the extent needed to permit communication. Under the “discrimination” exception, an employer could not prohibit access to non-employee union organizers, while at the same time allowing other non-employee, non-union entities or individuals access to the employer’s property.

While the National Labor Relations Board (the “Board”) generally applied the holding of Babcock, including the two exceptions, it effectively created a third exception to the general rule of Babcock. Specifically, the Board previously held that non-employee union organizers could not 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. See Montgomery Ward & Co., 256 NLRB 800, 801 (1981).

Applying the Montgomery Ward rule, the Board had consistently found that employers violate the NLRA when they restrict public-cafeteria access for non-employee union organizers who engage in solicitation and other promotional activities but are not disruptive. See Oakwood Hospital, 305 NLRB 680 (1991); Baptist Medical System, 288 NLRB 882 (1988); Southern Maryland Hospital Center, 276 NLRB 1349 (1985); and Ameron Automotive Centers, 265 NLRB 511 (1982).

Under that backdrop, the Board recently decided the case of UPMC and UPMC Presbyterian Shadyside, 368 NLRB 2. In that case, two non-employee union organizers entered UPMC’s cafeteria and met with a group of employees to discuss union organization matters. After receiving two reports, UPMC’s Security Operations Manager asked both organizers to leave, stating that the cafeteria was for the use of patients, their families and visitors, and staff only. The organizers refused to leave and were later escorted off the property by police. An unfair labor practice charge was subsequently filed alleging that, by removing the organizers from the cafeteria, UPMC had violated that Act.

The Board, largely relying on Babcock, found that an employer does not have a duty to allow the use of its facility by non-employees for promotional or organizational activity. According to the Board, the fact that a cafeteria or other location on the employer’s private property is open to the public does not mean that an employer must allow any non-employee access for any purpose. Absent discrimination, the employer may decide what types of activities, if any, it will allow by non-employees on its property.

Applying this standard to the facts before them, the Board found that the employer did not violate the Act. The Board found that UPMC’s employees were not inaccessible by reasonable non-trespassory means, and that UPMC prohibited all solicitation or promotional activity in its cafeteria – no just union activity – so there was no discrimination either. As a result, UPMC did not violate the Act.

Therefore, under the UPMC decision, employers are permitted to deny access, even to a public space within the employer’s private property such as a cafeteria or restaurant, so long as there are other reasonable means for the organizers to reach the employees, and the employer is not discriminatory in who receives access and who does not.

Employers with questions are advised to consult with their legal counsel regarding specific questions or concerns. If you have any questions, or need assistance, please feel free to contact Jeremy D. Iosue or Jason T. Hartzell at (216) 651-0451.

This Employment Law Alert provides an overview of specific federal and/or state rules. It is not intended to be, and should not be construed as, legal advice for any particular situation or individual.

Copyright © 2020 Stefanik Iosue & Associates, LLC. All rights reserved.

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