June 18, 2019

Employers No Longer Have to Allow Non-Employee Union Organizing on Their Property, NLRB Says

If part of an employer’s property is open to the public (such as a cafeteria or restaurant), can external union organizers use it to try to organize that employer’s workforce? For decades the National Labor Relations Board (NLRB) said yes: As long as union organizers used the facility in a manner consistent with its intended use and were not disruptive, the employer had no ability to remove them from its property.

That changed on June 14, 2019, when the NLRB ruled that a Pittsburgh hospital could eject organizers who were discussing union organizational campaign matters with employees in its public cafeteria.

For over half a century the NLRB and courts have struggled to find the right balance between an employer’s property rights and the rights of external union organizers to solicit employees to join them. The general rule has always been that an employer may deny external union organizers access to its private property.

Over the years the Supreme Court developed two narrow exceptions. The first exception, which allows union organizers access when they have no other reasonable means of communicating with employees, almost never applies. But the second exception – that an employer may not discriminate by allowing some outside groups to solicit on its property while prohibiting union organizers from doing so – frequently comes into play.

The NLRB developed a third exception, broadly allowing union organizers access to solicit on an employer’s private property if it was open to the public (even if the employer generally prohibited solicitation). This new NLRB decision eliminates that third exception, but the previous two exceptions remain.

An employer still cannot discriminate against outside union organizers. If it allows the public on its property, it must allow union organizers as well (it cannot deny access just because they are union organizers—it can bar them only if they actively engage in organizing activities). And if an employer allows other organizations to solicit on its property, it must allow union organizers to do so as well. But now, with this new decision, an employer that consistently prohibits soliciting on their property can enforce that rule against outside union organizers.

In practice, an employer that wants to rely on the new NLRB holding to keep outside union organizers from soliciting employees on its property must act before organizing begins. The employer must develop policies and procedures to prevent any solicitation on its property. The most sophisticated employers will also take steps to ensure that they keep records showing when they have enforced their prohibitions on solicitation. Then, if there is ever a question about the employer barring union organizers from soliciting on the property, it will be able to show that it has enforced its policies against all who solicit and has not discriminated.

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