The National Labor Relations Act (NLRA) provides that employees have a right to organize, bargain collectively and engage in protected concerted activities. The NLRA makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights” guaranteed under the NLRA. However, the NLRA does not provide the same rights to nonemployees. This past summer, the National Labor Relations Board (NLRB) issued a series of decisions protecting employer property rights against nonemployees.
Employers Can Eject Union Organizers from Hospital Cafeterias
On June 14, 2019, the NLRB in UPMC and its Subsidiary, UPMC Presbyterian Shadyside, 368 NLRB No. 2, held that an employer is not obligated to allow nonemployees to have access to its cafeteria located on the employer’s private property, but open to the public. As long as an employer does not discriminate between nonemployee union representatives and other nonemployees in allowing access to its property, the employer can determine what activities, if any, it will allow nonemployees to engage in. The NLRB overruled decisions relying on the “public space” exception requiring employers to allow nonemployees to engage in promotional or organizational activity in public cafeterias or restaurants if there was no evidence of discrimination in the denial of access.
In this case, the hospital-employer removed organizers who were having lunch with its workers and distributing union materials at a cafeteria located on the premises. While there were no postings indicating who was allowed on the premises, it was the hospital’s practice to remove nonemployees who engaged in any solicitation or distribution of promotional materials.
The NLRB emphasized that as long as an employer does not discriminate between nonemployee union representatives and nonemployees of other organizations, it can decide what types of activities, if any, it will allow nonemployees to engage in on its property.
Employers Can Lawfully Exclude Off-Duty Contractor Employees
On August 23, 2019, the NLRB held in Bexar County Performing Arts Center Foundation, 368 NLRB 46 (2019), that a property owner can lawfully exclude off-duty contractor employees from its property when those employees seek to engage in Section 7 activity. The only occasion when exclusion is not permitted is when employees work both “regularly and exclusively” on the property and when the property owner fails to show that the employees have one or more reasonable, non-trespassory alternative means to communicate their message.
When considering contractor employees, the NLRB considers work as “regularly” conducted on the owner’s property only if the contractor employer regularly conducts business or performs services there. Contractor employees will be said to work “exclusively” on the owner’s property if they perform all their work for the contractor on the property, even if the contractor employees have a second job elsewhere.
In this case, the Tobin Center for Performing Arts prohibited the San Antonio Symphony from accessing a sidewalk located on Tobin Center private property to leaflet. The Symphony was one of the Tobin Center’s resident companies, which had 30 of its own employees.
Applying the exclusion standard, the NLRB determined that the off-duty Symphony employees did not work exclusively at the Tobin Center because they used the property for rehearsals and performances only a few weeks a year. Moreover, the Symphony employees had reasonable alternative and non-trespassory channels of communicating any concerns to the public, such as leafleting elsewhere on public property or through social media platforms.
The NLRB determined that contractor employees are generally not entitled to the same Section 7 access rights as the employees of the property owner. Because employees of an onsite contractor are not employees of the property owner, their right of access to the property derives from their contractor employer’s right to conduct business on the property. Thus, the NLRB classified the off-duty employees of a contractor as trespassers. Without satisfying the standard set out above, contractor employees are not entitled access onto the owner’s property for Section 7 purposes and property owners will continue to be able to prohibit them without violating the law.
Employers Can Eject Nonemployee Organizers from Parking Lots
On September 6, 2019, the National Labor Relations Board again addressed the issue of an employer’s property rights in Kroger Limited Partnership, 368 NLRB No. 64 (2019), holding that Kroger did not violate the NLRA when it removed union representatives seeking to solicit customers to boycott the supermarket from the store’s parking lot.
An NLRB judge, relying on prior precedent, initially found that Kroger had discriminated against the union by allowing charitable and civic organizations to fundraise on its property while prohibiting the nonemployee union representatives soliciting customers from boycotting the store. The NLRB disagreed with that reasoning, overruled prior precedent and held that prior decisions improperly stretched the meaning of discrimination as it applies in these situations.
Instead, the NLRB limited the discrimination principle to instances where an employer prohibits nonemployee union representatives from its parking lots and private property when the employer permitted similar activities from other nonemployees. The NLRB clarified that activities such as the selling of Girl Scout Cookies are not of a similar nature or circumstance as soliciting unionization efforts. Problems would arise if, for example, nonemployee union representatives also tried to sell cookies and were ousted from the employer’s property; in that instance, the nature of the activity would be similar and, therefore, the company would not be able to remove them.
Because of the Kroger decision, employers will have to consider the nature and purpose of nonemployee activities taking place on their property to determine if they can lawfully eject nonemployees. Employers can deny access to nonemployee union organizers seeking to engage in protest activities so long as it also bans other nonunion organizations who seek to engage in similar activities on its premises.