by Phil Wilson
New Decision Protects Employer Property
The NLRB is steadily rolling back (or I’d call it rationalizing) a number of the more outrageous Obama-era NLRB decisions. Earlier this month they returned to the longstanding rule that employers do not have to welcome union organizers onto public areas of their private property. The Supreme Court has ruled in two important decisions (Babcock & Wilcox and Lechmere) that employers generally have the right to exclude non-employee organizers from their private property. These cases carve out very limited exceptions for when organizers might gain access to an employer’s private property. In NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), the Supreme Court held that while an employer can’t prohibit employees from soliciting each other, “no such obligation is owed nonemployee organizers.” The court then held an employer can restrict access to union organizers so long as the union has other ways to access employees and that it is not withholding access in a discriminatory way. In Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), the Supreme Court reaffirmed and extended Babcock. It held that employers can restrict nonemployee union access to an employee parking lot on the employer’s property. The Court even said that the Babcock access exception would only apply in “rare cases” and where it was absolutely necessary to protect the Section 7 rights of employees. The Supreme Court in Lechmere went out of its way to remind everyone that outside of this very limited exception, “Section 7 simply does not protect nonemployee union organizers . . . .” Not much to argue about, right? Not so fast. Over the last 30 years unions and pro-labor Boards have sought to create additional exceptions to broaden the general Babcock and Lechmere access framework. They set their sights on access to “public spaces” on the employer’s property like cafeterias. Numerous Board decisions over this period have given union organizers access to these public spaces. Most Circuit Courts who have considered the issue continue to follow Babcock and Lechmere, but this month the Board wanted to make clear that its position is clear. There is no “public space” exception outside of the limited circumstances of what the Supreme Court provided in Babcock and Lechmere. In UPMC (368 NLRB No. 2) the NLRB clarified that an employer does not have to allow access to its facility by nonemployees for promotional or organizing purposes. They further state that just because there is a public space like a cafeteria located on company private property does not mean nonemployees get access to that public space. The Board also clarified that the general rule is that an employer’s private property remains private and they can establish and enforce any access they want as long as they are facially neutral and consistently enforced. Absent a showing of discrimination, the employer is free to decide what activities, if any, nonemployees get to do. They have the right to eject someone who violates those rules, even if they are a union organizer. What’s the key takeaway for you? First, make sure to review your no solicitation rules and practices. If you have public spaces, make sure you are clear that your rules apply to these spaces as well. These rules must be facially neutral and consistently enforced. Second (and most important) make sure your supervisors know and understand the rules. The key problem in most of these cases it that exceptions to the rule get made from time to time, and those exceptions are later used as evidence of discrimination whenever the union wants access. The UPMC decision is a welcome clarification to this consistent encroachment to employer private property over the last several decades. And it’s a great time review your no solicitation rules and practices.
