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Legal Update

    Human Resources Group of West Michigan

    Legal Update – June 2019

    By

    Nathan D. Plantinga and Blake C. Padget

    Miller Johnson

    NLRB Strikes Down Longstanding Solicitation Rule

    As predicted, President Trump’s National Labor Relations Board continues its path to creating a more management friendly legal landscape.  This time, the NLRB overturned decades-old precedent allowing nonemployee union representatives to solicit for or promote union membership in the public areas of an employer’s property.  The case is UPMC, 368 NLRB No. 2 (2019).

    To understand the Board’s ruling in UPMC, it is important to understand the Board’s rules regarding union solicitation or distribution on company property.  In 1956, the Supreme Court established a general rule:

     

    [A]n employer may validly post his property against nonemployee distribution of union literature if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message and if the employer’s notice or order does not discriminate against the union by allowing other distribution.

    NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956).  Babcock established two exceptions to an employer’s right to deny access to its property by nonemployee union organizers: 1) inaccessibility and 2) discrimination.

    The inaccessibility exception applied to instances where the “union had no other reasonable means of communicating its message to employees.” Id. at 112. The discrimination exception applied in instances where the employer prohibited nonemployees from soliciting or promoting anything related to the union, but allowed similar activity for non-union purposes.  Jean Country, 291 NLRB 11, fn. 3 (1988), cited with approval in Lucifer Salter Packard Children’s Hospital at Stanford v. NLRB, 97 F.3d 583, 587 (D.C. Cir. 1996).

    Although Babcock only established two exceptions for nonemployee union representatives, the Board eventually established a third, so-called “public space” exception.  In Ameron Automotive Centers, the Board created an exception that allowed nonemployee union representatives to access a portion of the employer’s private property that is open to the public, such as a hospital, cafeteria or a restaurant.  Ameron Automotive Centers, 265 NLRB 511, 512 (1982). Since then, the Board has allowed nonemployee union representatives to engage in solicitation or promotional activities on an employer’s property that is open to the public, so long as the nonemployee union representative is not disruptive.  Id.; see also Oakwood Hospital, 305 NLRB, 680 (1991), enf. denied 983 F.2d 698 (6th Cir. 1993).  This had been the Board’s approach for almost 40 years, but that changed with the Board’s ruling in UPMC.  UPMC, 368 NLRB No. 2 (2019).

    UPMC centered on a dispute arising in February of 2013, when two nonemployee union representatives entered the hospital’s cafeteria.  The two nonemployee union representatives were meeting with UPMC employees and promoting the benefits of union membership.  When UPMC’s Security Operations Manager learned that union representatives were present, he went to the cafeteria to confront them.  The union representatives admitted they were not employees, but they were having lunch and talking to employees about union membership, which they believed they were entitled to do so. The Security Operations Manager told the union representatives to leave because the cafeteria was only for patients, their families and visitors, and employees.

    The union representatives responded by pointing out another nonemployee who was in the cafeteria to have lunch with her employee friend.  The union representatives asked the Security Operations Manager if the other woman would be asked to leave the cafeteria as well. The Security Operations Manager simply said “Maybe, but I’m dealing with this right now.” UPMC, 368 NLRB No. 2, 2 (2019).

    When the union representatives refused to leave, the Security Operations Manager called 911 and had them escorted out of the cafeteria.  UPMC did not have a posting either outside or inside the cafeteria indicating who may patronize it. However, the evidence showed that UPMC’s “practice has been to remove nonemployees who are engaged in promotional activity, including soliciting or distributing, in or near the cafeteria.” Id.  In response to the ejection, the union filed several unfair labor practice charges, including a charge alleging that UPMC violated the NLRA when it ejected the two nonemployee union representatives from its cafeteria.

    In its decision, the Board noted that the “public space” exception has been met with considerable disapproval among the nation’s Circuit Courts.  See Oakwood Hospital v. NLRB, 983 F.2d 698 (6th Cir. 1993); Baptist Medical Systems v. NLRB, 876 F.2d 661 (8th Cir. 1989); NLRB V. Southern Maryland Hospital Center, 916 F.2d 932 (4th Cir. 1990), rev. in relevant part 293 NLRB 1209 (1989).  The Board agreed with these Circuit Courts that the “public space” exception runs directly contrary to the principles in Babcock.  UPMC, 368 NLRB No. 2, 4 (2019).  After reviewing the issues before it, the Board ruled, “to 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.”  Id.

    What does this mean for employers? It means that employers may prohibit nonemployee union representatives from engaging in soliciting or promotional activities on the employer’s property, even in spaces that are open to the public, such as a cafeteria. However, this does not change the Babcock exceptions for instances of inaccessibility or discrimination.  NLRB v. Babcock & Wilcox Co., 351 U.S. at 112.  Since the inaccessibility exception is exceedingly rare, the main concern for employers should be avoiding discrimination in solicitation policies.

    If you want to prohibit union solicitation or promotional activities by nonemployees, make sure you apply the same prohibition to all individuals who seek to solicit or distribute materials in a public space on your property.

    For questions about this article or any other matter, please contact the authors:  Nathan D. Plantinga (616) 831-1773, plantingan@millerjohnson.com, or Blake C. Padget (269) 226-2953, padgetb@millerjohnson.com.

     

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