NLRB Eliminates Solicitation Exception for Union Organizers

In the past, if an employer had portions of its building open to the public, even it had a strict no-solicitation policy, it had to allow union organizers into its public space.  This access was granted after years of the NLRB struggles to strike a balance between employers’ desire to maintain a peaceful workplace and employees’ desires to organize.  Needless to say, many employers believed this was not a “balance” by any stretch of the imagination. 

Well, with the installation of a more employer-friendly board, the NLRB recently adjusted its stance on solicitation in the public sections of employer property.  In UPMC and SEIU, 368 NLRB No. 2 (June 14, 2019), the union filed unfair labor practice charges after its organizers were asked to leave the hospital cafeteria by hospital security guards.  When they refused to leave police were called and removed the organizers from the property. 

The hospital maintained a no-solicitation policy that prohibited nonemployees from using its public spaces for solicitation, and had a record of enforcing that policy.  This aspect was crucial to the Board’s decision to agree with the employer that the expulsion of the union organizers from the public space was lawful.  The Board found that the previous exception that was carved out for union organizing was inconsistent with the Supreme Court’s ruling in NLRB v. Babcock & Wilcox, which permitted employers to prohibit union agents from soliciting new members on employer’s property if the union could access employees through other means and the employer was not discriminating against unions in its prohibitions. 

In overruling its previous decision, the Board stated, “to the extent that Board law created a ‘public space’ exception that 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, we overrule those decisions.”  It cited the language Babcock & Wilcox, where the Court stated, “[t]he Act requires only that the employer refrain from interference, discrimination, restraint, or coercion in the employees’ exercise of their own rights. It does not require that the employer permit the use of its facility for organization when other means are readily available.”

This is a huge win for employers attempting to keep unions from accessing their employees while at work and for employees who desired to be left along while they ate their lunch.  However, some caution needs to be exercised by employers before they start kicking union organizers out of their cafeteria.  First, the non-solicitation rule relied upon by the hospital in UPMC and SEIU should be on the books prior to the start of any union organizing campaigns.  If an employer were to implement a non-solicitation policy after the campaign had already begun, and it had previously allowed solicitors on-site, the move could be seen as a discriminatory unfair labor practice. 

Second, if an employer is going to bar solicitors, it must bar all solicitors.  If an employer only looks to bar union organizers from its site and allows other non-employee solicitors on the premises, it could be subject to a discrimination charge. 

Finally, for you public employers (especially in Minnesota), this is a federal ruling that still has no precedential impact on the decisions that could be made by a state judge or labor board that is not bound by the decisions of federal agencies.  We have been told that governing bodies such as the PERB (although it still isn’t up and running) could use the NLRB as a persuasive authority for its future decisions, there is nothing requiring them to follow every decision issued by the Board. 

That being said, this decision should serve as a breath of fresh air for employers seeking peace in their public spaces where employees come to relax.  However, it can be tricky navigating the waters of possible unfair labor practices.  If you, or your organization, have any questions on how to respond to union organizing tactics, contact the Wiley Law Officer, for advice that works.