NLRB Eliminates “Public Space” Exception for Non-Employee Union Organizers

On June 14, 2019, the National Labor Relations Board (NLRB or Board) released its opinion in UPMC Presbyterian Shadyside, 368 NLRB No. 2, slip op. (2019), overruling prior NLRB decisions that created a “public space” exception allowing non-employee union organizers access to areas of the premises that were open to the public.

In UPMC Presbyterian Shadyside, a hospital security guard had two non-employee union organizers removed from the hospital cafeteria for soliciting for union business. The Board found that removal of the non-employee union organizers was consistent with the hospital’s prior practice of removing other non-employees from the premises who had engaged in similar promotional (solicitation or distribution) activity, and determined that the employer did not violate the NLRA for excluding the non-employee union organizers. (Notably, the NLRB found that the employer did violate section 8(a)(1) of the NLRA when its security guard required employees who had been meeting with the non-employee union organizers to produce identification.)

The opinion recognizes that, in NLRB v. Babcock & Wilcox Co. (1956), the U.S. Supreme Court created two exceptions to the general rule that employers have the right to exclude non-employee union organizers from their premises: (1) the “inaccessibility” exception–when the union lacks any “other reasonable means of communicating its message with employees”; and (2) the “discrimination” exception–when exclusion of the non-employee union organizers would constitute “disparate treatment” because the property owner allows other non-employees to engage in similar conduct on the property. The NLRB noted, however, that in its own prior decisions in Ameron Automotive Centers, 265 NLRB 511 (1982) and Montgomery Ward & Co., 256 NLRB 800 (1981), the Board had created a third exception for “public spaces,” whereby employers could not exclude non-employee union organizers from areas that were open to the public (such as a snack bar or cafeteria). In UPMC Presbyterian Shadyside, the 3-1 majority of the Board announced its rejection of the “public space” exception, overruling Ameron Automotive Centers, Montgomery Ward & Co., and their progeny, to the extent that those cases recognized a “public space” exception.

So, what does this departure from precedent mean? Assuming there is no evidence of the union’s “inaccessibility” to employees (a rare and limited circumstance), it means employers subject to the NLRA may exclude non-employee union organizers from the premises who engage in soliciting and distribution activity, so long as the employer consistently applies a policy or practice of excluding other non-employees who engage in similar promotional conduct. Arguably, posting of such a policy or practice in areas open to the public, may be in the employer’s best interests.

The NLRB’s decision (and the scathing dissent), can be found here.