Hunton Employment & Labor Perspectives

Earlier this year, the Office of the General Counsel (GC) of the  National Labor Relations Board (Board) issued an Advice Memorandum in Case 05-CA-281089 instructing Board Region 5  to issue a complaint alleging  that the employer, LT Transportation (a shuttle bus transportation provider), violated Section 8(a)(1) of the National Labor Relations Act, when it banned nonemployee union organizers from boarding its shuttles because of their identity as union organizers. The GC also directed the Region to use the case as a vehicle to argue that that two Board precedents, UPMC, 368 NLRB No. 2 (June 14, 2019) and Kroger, 368 NLRB No. 64 (2019), should be overruled because, in the view of the GC, they narrowed employee rights set forth in two U.S. Supreme Court cases, NLRB v. Stowe Spinning Co., 336 U.S. 226, 233 (1949) and NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956).

Stowe and Babcock

In Stowe, the United States Supreme Court held that an employer violated Section 8(a)(1) of the Act by discriminating against nonemployee union organizers when it permitted outside community groups to use a meeting hall on the employer’s private property, but prohibited nonemployee union organizers from using the same meeting hall. In Babcock, the Supreme Court formally established a framework for analyzing whether an employer has unlawfully excluded nonemployee union representatives from its private property, which included the discrimination exception established in Stowe.

The cornerstone of the discrimination exception is whether an employer excluded nonemployee union organizers from its private property, but did not exclude other “similarly situated” individuals or organizations. See Stowe, 336 U.S.at 233.

The NLRB GC’s Position Concerning UPMC and Kroger

The GC interprets UPMC as improperly limiting the discrimination exception established in Stowe and Babcock by permitting employers to prohibit nonemployee union organizers from engaging in certain conduct on private property. In UPMC, the Board interpreted the discrimination exception to apply to the identities of individuals, rather than the conduct of such individuals. The Board, relying on the “similarly situated” component of Stowe, determined that an employer was free to permit, or prohibit, certain conduct on its private property, so long as it did not allow non-union persons to engage in conduct similar to that which the employer prohibits union organizers from engaging in on its private property.

The union organizers’ conduct in UPMC was comprised of (1) sitting at tables in the employer’s cafeteria that held union flyers and pins, (2) eating lunch, and (3) talking with the employer’s employees about the union. Id. at 1-2. The Board in UPMC determined that the union organizers’ conduct was “promotional activity,” which was prohibited by the employer. Id. at 9-10. In the Advice Memorandum, the GC disagrees with the UPMC Board’s fact determination that the union organizers’ conduct was “promotional activity.” While the Advice Memorandum does not contain a fulsome legal analysis of how the UPMC holding conflicts with the discrimination exception set forth in Stowe and Babcock, the GC urges the Region to argue that UPMC improperly narrows the discrimination exception.

As with UPMC, the GC interprets Kroger to improperly limit the discrimination exception. In Kroger, the Board affirmed that an employer engages in unlawful discrimination within the meaning of the discrimination exception when it treats union-related activities less favorably than similar activities that are not union-related, and ruled that the purpose behind the activities is instructive when determining whether the activities are “sufficiently similar” to invoke the discrimination exception.

In the Advice Memorandum, the GC again urged the Region to argue that Kroger be overruled because Kroger takes into account not only the conduct engaged in by union organizers, but the purpose behind the conduct. The GC concludes that, because Kroger looks to the purpose behind the conduct, it improperly narrows the discrimination exception by permitting an employer to deny access to nonemployee union organizers who are engaged in conduct similar to that engaged in by, for example, a charitable organization, where the purpose behind the union organizers’ conduct (organizing employees, for example) differs from the purpose behind the conduct of the charitable organization (fund raising, for example). Again, however, the Advice Memorandum does not contain legal analysis supporting the GC’s contention that the discrimination exception precludes consideration of the purpose behind the conduct when determining whether the conduct is sufficiently similar.

LT Transportation

In the Advice Memorandum issued in the LT Transportation case, the GC determined that the employer’s conduct fell within the discrimination exception as applied in UPMC and Kroger. After learning that nonemployee union organizers had been (1) boarding LT Transportation’s shuttles; (2) speaking with LT Transportation’s employees—the shuttle drivers—about terms and conditions of the drivers’ employment; and (3) discussing union organizing in a nondetailed manner with the drivers, counsel for LT Transportation informed counsel for the union that LT Transportation would take legal action against the nonemployee union organizers who boarded LT Transportation’s shuttles.  Because LT Transportation effectively banned nonemployee union organizers from boarding LT Transportation’s shuttles, the GC determined that the prohibition was aimed directly at the identity of the nonemployee union organizers as agents of the union, and thus fell squarely within the discrimination exception. While the GC’s position in LT Transportation is not unexpected, the Advice Memorandum provides insight into the goals of the GC, which appear to include expanding the Act at the expense of employer private property (and other) rights. However,  because the Advice Memorandum lacks a fulsome legal analysis of how UPMC and Kroger conflict with the contours of the discrimination exception set forth in Stowe and Babcock, it raises questions about whether the GC’s goals are in line with Supreme Court precedent and the Act itself.