UPMC Presbyterian Shadyside, a hospital located in Pittsburgh, Pennsylvania, operates a cafeteria that is open to the public for use by employees, patients, their families, and visitors. Two union organizers, who were not employees of the hospital, went to the cafeteria one day in early 2013 and sat with employees eating lunch. The non-employee union representatives discussed union organizing with hospital employees, answered questions, and distributed union pamphlets and buttons.
An employee complained to the hospital’s security manager that the union representatives were soliciting in the cafeteria in violation of hospital policy. The security manager went to the cafeteria and asked the union representatives, who he did not recognize as employees, for identification. He also asked the employees sitting at the table with the union representatives for identification. After confirming that the union representatives were not employees, the security manager asked them to leave the cafeteria in accordance with the hospital’s non-solicitation policy. The union representatives refused the request to leave, and the hospital had to call the police to have them escorted off the premises.
Following the incident in the cafeteria, the union filed an unfair labor practice charge (ULP) alleging violation of Section 8(a)(1) of the National Labor Relations Act (NLRA) by: (1) removing the union representatives from the premises, (2) unlawfully surveilling employees, and (3) requiring employees to provide identification.
At hearing, the Administrative Law Judge (ALJ) found that the hospital committed a ULP under all three of the union’s allegations.
Public Space Exception is Overturned
The NLRB reversed the ALJ’s decision as to the first two issues—that the hospital committed a ULP by removing the union representatives and by surveilling employees who interacted with them. In doing so, and in a 3-1 decision, the Board overturned a nearly 40-year old NLRB precedent known as the “public space exception,” that required employers to allow non-employee union organizers to access an area of an employer’s property that is open to the public, such as a cafeteria or restaurant, so long as they are not disruptive.
In UPMC Presbyterian Shadyside, the Board overturned the public space exception on the basis that it runs afoul of the U.S. Supreme Court’s standard governing non-employee union representative access to an employer’s private property. In a 1956 case, NLRB v. Babcock & Wilcox Co., the Supreme Court held that an employer can prohibit non-employee union organizers from its premises so long as (1) the union can reasonably reach employees through other channels of communication, and (2) the employer does not discriminate against the union by allowing other solicitation on its premises. In this case, the Board pointed out that the NLRB-created public space exception was inconsistent with the two exceptions set forth by the Supreme Court—inaccessibility and discrimination. Thus, the Board held that the employer did not violate the NLRA by removing the non-employee union representatives, and disposed of the public space exception by stating:
An employer does not have a duty to allow the use of its facility by non-employees 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 non-employee access for any purpose. Absent discrimination between non-employee union representatives and other non-employees … the employer may decide what types of activities, if any, it will allow by non-employees on its property.
This case provides several takeaways for private sector employers with cafeterias or similar spaces that are open to the public.
1. No Obligation to Allow Union Organizers Access to Public Spaces:
Employers may now prohibit non-employee union organizers from soliciting and conducting campaign activities in areas open to the public such as cafeterias and waiting rooms. However, all other non-employees must also be prohibited from conducting similar activities in public spaces.
2. Non-Distribution and Non-Solicitation Policies Are Critical:
Employers should review their policies and employee handbooks to determine whether they have a Non-Distribution/Non-Solicitation policy, and if so, whether it covers solicitation by non-employees in public spaces. If not, employers should update their policies to prohibit all distribution and solicitation by non-employees. Employers who do not have a current Non-Distribution/Non-Solicitation policy would be well-served to add one.
3. Policies Must be Enforced Uniformly and Consistently:
As many employers are all too aware, a policy is only as good as its enforcement. This is especially true with regard to the requirement that Non-Distribution/Non-Solicitation policies be enforced uniformly and consistently to all non-employees, not just unions.
If you have questions about your Non-Distribution/Non-Solicitation policy or access to public spaces by labor organizations, please contact Trevor Caldwell at firstname.lastname@example.org or (503) 276-2117.
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Las Alertas electrónicas son escritas por abogados de Barran Liebman para sus clientes y amigos. Las Alertas no son proveídas como asesoramiento legal, sino solo como anuncios de leyes de empleo, leyes laborales y beneficios de empleo. Si esto ha sido remetido a usted y quisieras empezar a recibir las Alertas directamente, por favor mándanos un correo electrónico o llama a Traci Ray al 503-276-2115. Derechos de autor ©2020 por Barran Liebman LLP.