NLRB Limits Union Access Rights

By Chad M. Horton - Shawe Rosenthal LLP

June 18, 2019

The National Labor Relations Board (the Board) has overruled decades-old precedent in holding that employers may deny access for non-employee union representatives to public restaurants and cafeterias on the employer’s private property.

Prior Precedent: Before this decision, and for nearly four decades, the Board held that non-employee union organizers cannot be denied access to restaurants and cafeterias open to the public if the organizers use the facility in a manner consistent with its intended use and are not disruptive. Applying this rule, the Board had consistently found that employers violate Section 8(a)(1) of the National Labor Relations Act (NLRA) – the law applicable to private-sector employers, including those with non-union workforces – when they restrict public-cafeteria access for nonemployee union organizers engaging in solicitation and other promotional activities that are not “disruptive.”

Case Background: In UPMC, two non-employee union organizers were eating lunch and meeting with employees in the Hospital’s cafeteria, which is accessible to the public. Union flyers and pins were displayed on the tables where the organizers were seated, and one off-duty employee was passing out union flyers to others in the cafeteria. After receiving two reports that non-employees were soliciting in the cafeteria, the Hospital’s security manager approached the table and asked the organizers what they were doing. The organizer responded that they were eating lunch and discussing the union with employees. The security manager then asked the union organizers to leave. When the organizers refused to leave, the Hospital called the police and officers escorted the organizers off the property. Notably, the Hospital had previously denied cafeteria access to non-employees soliciting for money, as well as individuals who were distributing literature on behalf of a spiritual group.

The union filed a charge with the NLRB alleging that the Hospital violated Section 8(a)(1) by denying union organizers access to a public area within private property.

The Board’s Ruling: In a 3-1 decision, the Board held that the Hospital did not violate Section 8(a)(1) when it denied non-employee union organizers access to its public cafeteria. The Board found that an employer does not have a duty to allow the use of its facility by non-employees for promotional or organizational activity, even if that activity occurs in an area open to the public. Thus, absent discrimination between non-employee union representatives and other non-employees – i.e., disparate treatment where an employer bars access by non-employee union representatives for certain activities while permitting similar activities by other non-employees – the employer may decide what types of activities, if any, it will allow by non-employees on its property. Here, the Board found no such discrimination, relying on the Hospital’s practice of barring other third parties who were reported to be soliciting or distributing in the cafeteria.

Practical Impact: An employer may now deny access to non-employee union organizers in its public cafeterias and restaurants for purposes of solicitation and distribution, provided that it does not permit other non-employees to engage in similar activities in similar circumstances. This ruling will be especially important to employers in the healthcare, hospitality, and restaurant sectors that no longer have to tolerate union solicitation and distribution in public areas of its property.