The National Labor Relations Board (the “Board”) recently issued a decision in UPMC Presbyterian Shadyside that reverses longstanding Board precedent and holds that employers no longer have to allow nonemployee union representatives access to public areas of their property unless (1) the union has no other means of communicating with employees or (2) the employer discriminates against the union by allowing access to similar groups.
The UPMC case arose after the employer, a hospital, ejected two union representatives from its cafeteria, where they had been discussing organizational campaign matters with and providing union literature and pins to employees. Previously and for many years, the Board had held that an employer could not restrict nonemployee union representatives from engaging in promotional or organizational activity in its public spaces, including cafeterias, so long as the union representatives were not “disruptive.” In UPMC, the Board returned to a more common-sense approach and held that the National Labor Relations Act “does not require that the employer permit the use of its facility for organization when other means are readily available.” Furthermore, although the union argued that other nonemployees (such as an employee’s friend) had been permitted to access the cafeteria, the Board responded that “[t]he fact that a cafeteria located on the employer’s private property is open to the public does not mean that an employer must allow any nonemployee access for any purpose.” Rather, it would be the union’s burden to show “disparate treatment”—in other words, that the employer denied union representatives access while allowing other non-employees to engage in similar activity on the premises. Because the employer demonstrated that it had previously acted to prohibit solicitation by other outside parties, the Board found that the employer had not discriminated against the union representatives.
The UPMC case is a significant victory for employers that maintain public areas such as cafeterias. Going forward, such employers should maintain clear no-solicitation, no-distribution policies, and ensure that any rules against solicitation on company property are uniformly enforced. Employers should also document any instances when they enforce the no-solicitation, no-distribution policy to defend against potential allegations of disparate treatment.