On June 14, 2019, the National Labor Relations Board issued a landmark decision that gives employers more leeway to exclude nonemployee union representatives from areas of the company’s private property that are generally open to the public. However, employers in states like California may not be able to enjoy all the benefits of the Board’s decision, due to state laws that broadly protect unions’ rights to conduct lawful activities on public areas of employers’ property.
The Board’s decision came in a case where the University of Pittsburgh Medical Center, known as “UPMC,” was charged with violating the federal National Labor Relations Act by ejecting two nonemployee union organizers from its hospital cafeteria. While in the cafeteria, the organizers met with several UPMC employees to discuss union campaign matters and distribute union literature and other paraphernalia to UPMC employees. A UPMC security manager called the police, who escorted the nonemployees off the property.
The Union claimed that its representatives were lawfully present in an area of the hospital that was open to the public, and that they were not being disruptive. In support of its charge, the Union relied on nearly 40 years of Board decisions which had established a so-called “public space” rule. Under these cases, an employer violated federal labor law when it prohibited nonemployees from engaging in union activities in areas of the employer’s private property that were generally open to the public – such as cafeterias, lobbies, and restaurants. To come under this protection, the nonemployee union organizers had to be using the employer’s facility in a manner consistent with its intended use and not be disruptive – for example, eating lunch. Even if the employer generally excluded nonemployees from engaging in solicitation and other such activities on its property, the Board’s “public space” rule prevented employers from excluding nonemployee union representatives whose activities fell under the rule.
In the UPMC case, however, the Board overruled prior decisions that had established the “public space” rule. Instead, the Board ruled that employers generally can prohibit nonemployees from solicitating or distributing union literature on the employer’s private property, including areas that are otherwise open to the public at large.
However, there is an two important exception to the rule adopted in UPMC called the “discrimination” exception. If the employer allows nonemployees to conduct other types of distribution or solicitation in public areas of the employer’s property, it cannot exclude union representatives from doing so as well.
Neither of these exception applied to UPMC, which had a past history of ejecting nonemployees who were soliciting or distributing literature that had nothing to do with union organizing. The Board found that UPMC did not violate the law by ejecting nonemployee union organizers from its property.
Although the UPMC decision is good news for employers in general, it figures to have far less impact on employers in states such as California which offer their own strong protections for union organizing activity. In 1975, the California Legislature enacted the Moscone Act, which states that certain activities routinely undertaken during labor disputes – for example, peaceful picketing, publicizing, advertising, speaking, and patrolling in public areas of private property – are lawful and cannot be restricted by means of a court injunction. This Act excludes protection for unlawful conduct, such as “breach of the peace, disorderly conduct, the unlawful blocking of access or egress to premises where a labor dispute exists, or other similar unlawful activity.” In 1999, the state Legislature passed another law which sets an extremely high standard for obtaining a court injunction during a labor dispute.
If a case like UPMC were to arise in California, the Board’s new decision would prevent the employer from being found responsible for federal labor law violations, so long as the employer consistently refused to allow any solicitation by third parties on its property. However, it is far less likely that a California court would issue an injunction to keep the organizers away.
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John J. Manier
Ballard Rosenberg Golper & Savitt, LLP