Employers Can Limit Union Activities in Public Spaces on Their Property

Labor board says employers must consistently apply nonsolicitation policies

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Employers can now ban nonemployee union representatives from organizing in public spaces on their property—so long as their policies are applied consistently to all nonemployees.

The National Labor Relations Board (NLRB) recently overturned board precedent, which previously held that nonemployee union representatives could access an employer's public spaces if they weren't disruptive.

"The decision broadens employers' right to restrict union access to company property," explained David James, an attorney with Nilan Johnson Lewis in Minneapolis. 

Previously, nonemployee union representatives could enter places where the public was invited, such as restaurants and hospital cafeterias, in privately owned buildings to solicit union support and distribute literature. Under the board's new ruling, employers can limit such access if they don't discriminate against the union and the union has another reasonable way to communicate with employees. 

As a result of the NLRB's decision, employers should carefully review their access, solicitation and distribution policies, said Henry Warnock, an attorney with FordHarrison in Atlanta.

"In my experience, the greatest challenge for employers is uniformly applying a nonsolicitation policy," he noted. A well-intentioned employer may want to allow some nonemployees to solicit workers or distribute literature on its property. "However, doing so would jeopardize the employer's ability to prevent union organizers from soliciting in its public areas," he said.

Employers should note that the decision affects only nonemployees, said Reyburn Lominack, an attorney with Fisher Phillips in Columbia, S.C. "It does not affect the rights of employees to solicit on company property in nonwork areas during nonwork time."

Consistency Is Key

The board considered whether a medical center violated the National Labor Relations Act when it booted union organizers from a hospital cafeteria that was open to employees, patients and visitors.

The union representatives met with employees to discuss an organizational campaign and an NLRB settlement, but a security manager asked them to leave after he received complaints. He cited the hospital's policy, which allows only patients, their families and visitors, and employees to use the cafeteria.

Although employees can't restrict workers from discussing union organization among themselves, U.S. Supreme Court precedent holds that "no such obligation is owed nonemployee organizers." However, employers may be required to grant access to nonemployee union representatives if the union has no other reasonable way to communicate with workers. Additionally, employers may not bar union representatives while allowing other nonemployees to solicit workers or distribute material.

Accessibility wasn't an issue in the case involving the medical center, so the NLRB focused on whether the center discriminated against unions. "[W]e find no violation based on this exception because there is no evidence that the [employer] permitted any solicitation or promotional activity in its cafeteria," the board ruled.

The hospital had also removed nonemployees who were asking for money and distributing spiritual literature. Although the security manager did not remove a woman who was waiting for an employee in the hospital cafeteria, "there is a difference between admitting friends or relatives of employees for meals and permitting outside entities to seek money or memberships," the NLRB concluded.

The nonemployee union representatives who were distributing union materials were treated no differently than other nonemployees who were soliciting or distributing literature in the cafeteria, the board noted. Thus, the employer did not violate federal labor law by requiring the union representatives leave the property.

Tips for Employers

Employers that have historically tolerated union organizing in public areas of their property can now prevent such activities if they do so in a nondiscriminatory way, Lominack explained.

While the ruling doesn't specifically require employers to change their existing nonsolicitation policies, it provides a good reminder of why employers should have one, James said.

[SHRM members-only HR Q&A: How can we prevent a union from organizing in our company?]

"Employers may want to implement and strictly enforce nonsolicitation policies to exclude union organizers who access public areas to solicit," Lominack suggested. "Employers should not, however, make any changes to their policies affecting employees as a result of this decision," he added.

James noted that employers should update security policies and practices regarding onsite solicitation and distribution to ensure that such activity is broadly prohibited and policies are actively enforced. Moreover, employers with public spaces should consider posting "no solicitation" signs to publicize the policy to all visitors, he said.

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