NLRB Holds Employers May Bar Union Organizers From Public Areas On Employers’ Property Absent A Showing Of Inaccessibility Or Discrimination - Articles

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Posted by: Greg Grisham on Aug 9, 2019

In UPMC Presbyterian Hospital(”UPMC”)[1], the National Labor Relations Board (“NLRB” or “Board”) considered the question of whether the Employer UPMC unlawfully ejected nonemployee union or­ganizers from its hospital cafeteria, an area open to the public. In ruling in favor of UPMC, the Board overruled existing Board precedent “regarding access to public restaurants and cafete­rias within an employer’s private property by nonemployee union representatives.”

Fact Summary

In UPMC, two union representatives met with six employees using two tables in a cafeteria located in the employer’s hospital to eat lunch and discuss“union organizational campaign matters.” Union flyers and pins were displayed on the two tables and one off-duty employee present passed out some union flyers. The union representatives also spoke to other employees that stopped at the tables. After receiving complaints from a manager and an employee, the Employer’s Security Operations Manager approached the two union representatives, and asked them to leave. When the union representatives refused to leave, a call was made to 911 and several police officers arrived to escort them off the property.

At the time the union representatives were removed, there were no rules posted in the cafeteria regulating access. While the Employer did “not actively monitor who is using the cafeteria” the Employer’s Security Department responded “to reports of solicitation by nonemployees.”[2] The Employer introduced evidence (which was not rebutted) establishing a consistent past practice of removing nonemployees who had engaged “in pro­motional activity, including soliciting or distributing, in or near the cafeteria.” [3]

NLRB’s Opinion

The Board began its analysis by reviewing U.S. Supreme Court precedent on the issue of union access and employer property rights.The CourtinNLRB v. Babcock & Wilcox Co.[4] made clear that “no restriction could be placed on the employees’ right to discuss self-organization among themselves (absent a demonstration that a restriction was necessary to main­tain production or discipline).” However, the Court ruled “no such obligation is owed [to] nonemployee organizers” by Employers. The Court then set out the standard governing union access to Employer private property:

It is our judgment . . . that an employer may validly post his property against nonemployee distribution of union literature if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message and if the employer’s notice or order does not discrimi­nate against the union by allowing other distribution.[5]

 The Board noted that the exceptions set forth in Babcock have been described by the Court as “narrow ones and that the union’s burden of proof to establish that one or the other exception applies is a heavy one.”[6] The Board then turned to review Lechmere, Inc. v. NLRB[7]where the Court ruled the Employer “did not violate the Act by restricting nonemployee union access to an em­ployee parking lot on the employer’s property.”[8] Lechmere, the Board noted, further “strengthened Babcock’s general pro­hibition on nonemployee access, emphasizing that the Babcock inaccessibility exception would apply only in ‘rare case[s]’ and that only where ‘such access is infea­sible’ would it become necessary to accommodate em­ployees’ Section 7 rights and employers’ property rights.”[9]

The Board, using its own application of Babcock, finding that while the “inaccessibility” and “nondiscrimination” exception had been “generally applied,” the Board created a third exception when “union organizers seek access to a portion of the employer’s private property that is open to the public, such as a cafeteria or restaurant.”[10] In such cases, the Board held “nonemployee union organizers cannot be denied access to cafeterias and restaurants open to the public if the organizers use the facility in a manner consistent with its intended use and are not dis­ruptive.”[11] This third exception, in the Board’s view, effectively eliminated Babcock’s “general rule limiting nonemployee union access to private property and found discrimination based solely on the fact that nonemployee union organizers were ex­cluded.”[12] The Board further noted that this third exception “has been soundly rejected by multiple circuit courts.”[13] The Board concluded by overruling prior Board precedent to the extent the “‘pub­lic space’ exception … requires employers to permit nonemployees to engage in promotional or organization­al activity in public cafeterias or restaurants absent evi­dence of inaccessibility or activity-based discrimination.”[14]  The Board stated “[a]bsent discrimination between nonemployee union representatives and other nonemployees… the employer may decide what types of activities, if any, it will allow by nonemployees on its property.”[15]

Take Aways

The UMPC decision is another example of the current NLRB strengthening the hand of employers in dealing with organized labor, although it is difficult to reconcile the NLRB created “public space” exception with the Supreme Court’s holdings in Babcock and Lechmere. Employers now may freely exclude nonemployee union representatives from public areas on their private property absent a showing of inaccessibility or discrimination. Employers, however, must ensure that rules against solicitation by nonemployees are consistently enforced in an even-handed manner to avoid claims of discrimination against union organizers/representatives.


[1] 368 NLRB No. 2 (June 14, 2019).

[2] Id. at p. 2.

[3] Id.

[4] 351 U.S. 105 (1956).

[5] 351 U.S. at 112.

[6] 368 NLRB, at p. 3 (quoting Sears Roebuck & Co. v. San Diego County District Council of Carpenters, 436 U.S. 180, 205 (1978)).

[7] 502 U.S. 527 (1992)

[8] Id. at 541.

[9] 368 NLRB, at p. 3 (quoting Lechmere, Inc.,502 U.S. at 537-38).

[10] Id.

[11] Id. (citingMontgomery Ward & Co., 256 NLRB 800, 801 (1981), enf’d. 692 F.2d 1115 (7th Cir. 1982)).

[12] Id.

[13] Id.

[14] Id. at 4.

[15] Id. at 4-5.


–– J. Gregory Grisham is Of Counsel in the Memphis Office of Fisher & Phillips, LLP and focuses his practice on the representation of employers in all aspects of labor and employment law. He received his Juris Doctor (with honors) from the University of Memphis, Cecil C. Humphreys School of Law in 1989. Greg may be reached at ggrisham@fisherphillips.com or 901-333-2076.