NLRB Gives Employers Greater Control Over Their Public Spaces

Executive Summary: In a 3-1 decision, the National Labor Relations Board recently ruled that employers may prohibit nonemployee union representatives from soliciting or promoting union membership within common areas of an employer’s business – such as public restaurants and cafeterias – as long as the employer does so in a non-discriminatory manner. See UPMC Presbyterian Shadyside, et al, Case 06-CA-102465 (June 14, 2019). This decision provides employers with greater control over the use of their facilities.

Explanation:  In the past, the NLRB recognized what is commonly referred to as the “public space” exception. The “public space” exception allowed nonemployee union organizers access to a portion of the employer’s private property open to the public, such as a cafeteria or restaurant. Specifically, nonemployee union organizers could not be denied access to employer areas that were open to the public as long as the organizers used the area in a fashion consistent with its intended use and were not disruptive.

In UPMC, two nonemployee union representatives met in the hospital cafeteria with a group of employees and discussed union campaign matters. The union representatives displayed union flyers and pins on the tables where they were sitting. After the union representatives had been in the cafeteria for over an hour, hospital security requested the representatives to leave because the hospital had an established practice of removing all nonemployees engaged in promotional activity in the cafeteria. The union representatives refused to leave and were eventually escorted off the premises by police officers.  The union filed an unfair labor practice charge against UPMC.

In addressing the Charge, the Board ruled that an employer does not have a duty to allow the use of its facility by nonemployees for promotional or organizational activity. The fact that an area such as a cafeteria is located on the employer’s private property is open to the public does not mean that an employer must allow all nonemployees access for any purpose.  In this case,  the hospital’s policy prohibited all nonemployees from engaging in promotional activities in its cafeteria, not just union organizers.

Bottom Line:  The Board’s decision provides employers with public spaces, such as restaurants and cafeterias, with greater control over their property and whom they must allow to congregate in such public spaces. Employers with public spaces should consider reviewing their handbooks, policies, and practices to take advantage of this change in the law.

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