Hunton Employment & Labor Perspectives

Last month, the National Labor Relations Board held that employers do not have to allow non-employees to use their cafeterias or similar public spaces for promotional or organizational activities.  See UPMC Presbyterian Hospital, 368 NLRB No. 2 (June 14, 2019) (“UPMC”).  In so holding, the Board overruled decades-old precedent.

UPMC specifically involved “public spaces,” a sometimes-gray area in union organizing.  Public spaces are somewhat-private areas on employer property that are also open to the public, such as employee cafeterias or snack bars, as compared to fully-public areas such as retail floors.

Practically speaking, after UPMC, employers should have greater flexibility in restricting a union’s use of public spaces.  Union organizers or representatives often seek to use public spaces to meet employees or distribute union literature.  Under UPMC, employers can restrict unions from soliciting or organizing there, or perhaps even accessing the areas altogether.  Notably, buried in a footnote, UPMC expressly overruled its prior North Memorial decision to the extent it granted non-employees a presumptive right to access employer property.  This could lead to future Board decisions in this area.

Prior to UPMC, even if employers maintained a neutral non-solicitation policy, they sometimes had to allow organizing activities in public spaces, so long as the activity was not disruptive.  In UPMC, the Board read these decisions—Ameron and Montgomery Ward—as creating an impermissible extra burden for employers to establish “disruptive” conduct by the union.  Instead, the Board held that the applicable standard is NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), which allows employers to restrict union access unless discrimination is shown.     

Thus, under UPMC’s “reversion” to a narrowly-interpreted Babcock standard, in order to retain the right to prohibit union organizers from the public spaces, employers must maintain a policy or practice of prohibiting distribution or solicitation on their property, and enforce the policy or practice non-discriminatorily.  If employers allow cookie sales or business solicitations in their cafeterias, for instance, they might have to allow unions to engage in similar conduct, even under the strengthened property rights articulated in UPMC.  For that reason, employers should have a carefully-crafted non-solicitation and distribution policy, and make sure they properly and consistently enforce it.

UPMC does not affect an employer’s ability to enforce property rights against non-employees on their private property, as determined by state law.  Further, UPMC does not appear to affect the special rules regarding subcontractors, retail stores, restaurants, and casinos.  The Board has recognized “special circumstances” in retail, food, and gambling establishments given their public nature and the special rapport between those establishments and their customers.  In such cases, employers can generally prohibit solicitation in fully-public areas.

However, employers should be advised that the UPMC decision does not affect on-duty employees.  Employers may not generally restrict employee solicitation during non-working time, even if done on the employer’s private property.

UPMC is also notable because it attempts to resolve a long-developing split in authorities regarding public spaces.  The Board first recognized that public spaces should be treated differently in the now-overruled Montgomery Ward, & Co., 256 NLRB 800 (1981).  There, the Board held that union organizing should be permitted in public spaces if done in a manner consistent with the area’s normal usage.  Thus, if employers allowed non-employees in their cafeteria areas to meet with employees, then unions must be allowed to as well.

Courts of appeals subsequently took different views of Montgomery Ward after the Supreme Court’s 1992 decision in Lechmere, which held that Section 7 of the National Labor Relations Act does not protect non-employee union organizers except in rare circumstances.  In UPMC, the administrative judge noted that the Board had never definitely answered whether Montgomery Ward was still valid after Lechmere.  See UPMC, 2014 NLRB LEXIS 882, at *50 (November 14, 2014).  Though the Board later resolved the other issues in UPMC, it specifically severed and retained this “public space” issue for a later date.  See UPMC, 366 NLRB No. 185 (N.L.R.B. August 27, 2018).

Now, nearly ten months later, we know why.

Other significant Board decisions are likely to come soon