Historically employers could not restrict labor organizing activity in employer-owned, publicly accessible spaces. But, last month, in UPMC Presbyterian Hospital, 368 N.L.R.B. No. 2 (2019), the NLRB reversed nearly 40 years of precedent holding that employers violate the National Labor Relations Act (NLRA) if they prohibit nonemployee labor organizers from publicly-accessible spaces.
Post UPMC, employers may adopt and implement neutral policies regulating the use of employer-owned spaces open to the public (such as cafeterias) and may lawfully apply those policies to exclude nonemployee union organizers. Employers with spaces open to the public should consider whether to adopt and enforce a content neutral (nondiscriminatory) bar to nonemployee solicitation or distribution in the publicly accessible spaces on their property.
In UPMC, two nonemployee union representatives entered the employer’s cafeteria located on the Hospital’s 11th floor. The representatives sat at two tables, displayed pro-union pins and flyers where they sat, while they ate lunch. They discussed the union organization campaign with employees who stopped by their tables. One representative also passed out flyers. Notably a friend (also a nonemployee) of an employee was in the cafeteria at the same time.
Ultimately, a security officer reported to the cafeteria, confronted the two union representatives and directed them to leave. The representatives argued that since at least one other nonemployee was in the cafeteria visiting a friend, it would be unfair to eject them when other nonemployees could stay. When they persisted, security contacted local police who in turn ejected the union representatives from the cafeteria. At trial, UPMC demonstrated it regularly ejected individuals from the cafeteria who solicited employees during lunch breaks. In all of those instances, the ejected nonemployees were asking for money or distributing various spiritual tracts; thus, those ejections were unrelated to any labor organizing activity.
The question of the case was whether the employer could lawfully eject the nonemployee union representatives from the cafeteria. The General Counsel alleged that UPMC violated the NLRA because the cafeteria was a public space and thus the employer could not eject the nonemployee union organizers. The Administrative Law Judge (ALJ) agreed.
The Board reversed the ALJ.
- First the Board cited NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956). According to Babcock, while Section 7 generally only protects employee rights to self-organization and does not protect nonemployees, an employer may violate Section 7 when it “discriminates” regarding the use of employer spaces otherwise available to the public. But — the Board reasoned that it is only in “rare cases [that] Section 7 . . . protect[s] nonemployee union organizers” through a Babcock discrimination theory. It emphasized that the requisite burden in establishing a discrimination violation is a “heavy” one.
- The Board then tackled the meat of the matter. It highlighted that even though the “discrimination” exception was narrow, the Board’s holding in Ameron Automotive Centers, 265 NLRB 511, 512 (1982), confounded the issue. In Ameron, the NLRB held that the NLRA was violated when nonemployee union organizers sought and were denied access to a portion of the employer’s private property open to the public, such as a cafeteria or restaurant. Under Ameron therefore, nonemployee union organizers could not be denied access to an employer’s publicly accessible spaces so long as the organizers conducted themselves in a non-disruptive manner and used that space consistent with its intended use.
- The Board took UPMC as an opportunity to reverse the Ameron line of cases.
- It identified at least three US Circuit Courts of Appeals that had roundly rejected Ameron’s reasoning, finding Ameron ignores the fact that the NLRA does not require employers to surrender their right to control the uses of its private property.
- It overruled the broad and generally unrestricted holding in Ameron that nonemployee union organizers have a per se right to organize in employer-owned publicly-open spaces.
- In its place, the Board held that a better and more nuanced approach is to evaluate whether, consistent with Babcock, employer-restricted use of employer-owned public space discriminates between non-union and union activities. The Board concluded that:
Absent discrimination between nonemployee union representatives and other nonemployees–i.e., ‘disparate treatment where by rule or practice a property owner’ bars access by nonemployee union representatives seeking to engage in certain activity ‘while permitting similar activity in similar relevant circumstances’ by other non-employees–the employer may decide the types of activities, if any, it will allow by non-employees on its property.”
Applying its refined reasoning to the facts, the Board concluded that UPMC did not violate the NLRA when it ejected the nonemployee union representatives from the cafeteria.
- It cited evidence demonstrating that while nonemployee individuals were regularly given access to the cafeteria, the employer consistently and without exception denied or revoked access to nonemployees who engaged in activities at the cafeteria “similar” to the nonemployee union representatives.
- Specifically, the Board noted that UPMC consistently enforced a practice of barring promotion and solicitation in the cafeteria, and did so regardless of the content of the promotion or solicitation.
- Because the evidence showed that UPMC applied a neutral policy against solicitation in the cafeteria, the Board concluded that UPMC had not discriminated against union organizing activities under Babcock by ejecting the nonemployee union representatives for impermissible solicitation on Hospital property.
There are several takeaways for employers flowing from UPMC.
- The Board determined it was irrelevant that the employer did not police the cafeteria for non-employees. Rather, the significant fact was that once a violation was reported, the rule against solicitation was consistently enforced. This shift in focus may be applied to rules against internet use, the use of emails, and the solicitation of co-workers by employees, among other rules. As long as employers enforce those policies in a content-neutral manner and do not use them merely as a tool to prevent labor organizing activity in public spaces, an employer does not run afoul of Section 7.
- The Board applied a fairly broad definition of “similar.” It held that the solicitation for money in the cafeteria and the distribution of spiritual tracts were sufficiently similar to union solicitation and distribution to demonstrate UPMC’s ban was not discriminatory. Thus, there may well be other employer policies barring certain employee activities that could be subject to the same broad “discriminated” analysis. For instance, an employer with a content neutral policy barring the use of its public wifi for non-personal use may argue that employees are properly disciplined when they use the employer’s wifi for union-related purposes. UPMC demonstrates, however that the employer must consistently apply its policies in a nondiscriminatory fashion and cannot pick and choose what kinds of non-personal activity is and is not appropriate.
- The majority and the dissent were unanimous that managers had not engaged in unlawful surveillance when they observed the nonemployees. As the Board explained, management officials may lawfully observe public union activity occurring on company premises, unless they do something out of the ordinary.
Unionized employers should take note of this significant holding. This is an ideal time to review policies and practices regarding the use of publicly-open spaces, in addition to other policies that may apply to public use of employer-owned property. Consistent with UPMC, employers are at less risk of violating Section 7 by prohibiting organizing activities in its public spaces based on neutral policies, as long as such an action enforces a policy targeted at a type of conduct (such as general solicitation or promotion) rather than the content of that conduct.