Sep 25, 2019

Employers May Limit Union’s Access to its Premises for Organizing Purposes— Reversing NLRB Precedent

On June 14, 2019, the National Labor Relations Board (“NLRB”), in UPMC Presbyterian Hospital held by a 2-1 majority that employers need not allow non-employee union representatives access to public areas of the employer’s private property, except in rare circumstances. Specifically, the Board reaffirmed the Supreme Court’s precedent from NLRB v. Babcock & Wilcox, Co., holding that although no restriction could be placed on employees’ right to discuss self-organization, “no such obligation is owed to non-employee organizers.” 351 U.S. 105, 113 (1956). Employers may restrict non-employee access to areas of its property regardless of whether the space is closed or open to the public, overturning past NLRB precedent which carved out an exception allowing non-employees access to public areas of an employer’s property.

This holding is not a free-for-all; there are two exceptions. If a union can show that either (1) no other reasonable means of communicating its organizational message to the employees exists, or (2) the employer’s access rules discriminate against union solicitation, then the employer’s right to refuse the non-employees’ access to the employer’s property will be surpassed. This is not a light burden to be met, though, and the non-employees will rarely meet the burden of proving either exception. Employers should be sure that their policies regarding non-employee access to its property do not reflect practices of union inaccessibility or discrimination.

If you have any questions regarding this decision or its impact, please contact your labor and employment counsel at Smith, Gambrell & Russell, LLP.