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Employers may limit union activities in public spaces

Overturns a 37-year old precedent

Posted June 19, 2019

On June 14, the National Labor Relations Board (NLRB) overturned a 1982 precedent, allowing employers to limit access to private property by nonemployee union representatives.

On February 21, 2013, union representatives entered an employer’s cafeteria, which was also publicly accessible, and met with a group of at least six employees, where they ate lunch and discussed union organizational campaign matters.

During this time, the company security operations manager received complaints about the activity in the cafeteria. After speaking with his supervisor, the operations manager went to the cafeteria and asked the union representatives for identification and inquired what they were doing there. He also asked employees seated at the tables for their identification. He then told the union representatives that they had to leave because the cafeteria was only for the use of patients, their families and visitors, and employees. The union representatives refused to leave, and the security operations manager called 911. Six police officers arrived and escorted the union representatives from the cafeteria.

The employer had nothing posted indicating who could patronize the cafeteria, nor did it actively monitor who was using the cafeteria. It did, however, have a practice of responding to reports of solicitation by nonemployees.

The union filed an unfair practice claim regarding nonemployee access of public spaces. The court agreed with the union, and the employer filed an appeal to the NLRB.

Since 1982, employers could not limit such access to their public spaces, even for unionizing activity. That was undone in the current opinion, when the NLRB found that an employer does not have a duty to allow the use of its facility by nonemployees for promotional or organizational activity. The 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.

If, however, the union has no other reasonable means of communicating with employees or the employer discriminates against the union by permitting similar groups access, granting public access might be prudent. In the current decision, the union had other reasonable means of communicating with the employees, and there was no discrimination (e.g., allowing access for representatives from one union access but not another).

Accordingly, the NLRB has held that nonemployee union organizers cannot be denied access to cafeterias and restaurants open to the public if the organizers use the facility in a manner consistent with its intended use and are not disruptive.

The NLRB did, however, agree with the limits regarding asking employees for their identification.

This decision will have the greatest impact on employers who have publicly accessible areas such as cafeterias or other public dining areas, particularly those in the hospitality industry.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc.

Employment Law Essentials ManualJ. J. Keller's Essentials of Employment Law Manual covers more than 100 vital HR topics, including FMLA, ADA, HIPAA, FLSA, COBRA and more.


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