No Solicitation: NLRB Decision Allows Employers to Prohibit Union Solicitation in the Workplace

On June 14, 2019, the National Labor Relations Board (the “Board”) overturned its long-standing ‘public spaces’ exception that allowed nonemployee union representatives access to employer-owned public spaces so long as those representatives were not disruptive. Now, in light of this ruling, an employer may ban nonemployee union representatives from organizing in a public space within the employer’s facilities, provided it does so in a nondiscriminatory way.

The following circumstances gave rise to the decision in this case: in February of 2013, nonemployee union representatives entered the University of Pittsburgh Medical Center Presbyterian Shadyside cafeteria and met with a group of employees. The representatives discussed the union organizational campaign matters. The Hospital received reports that nonemployees were soliciting in the cafeteria and distributing union flyers. The Hotel’s security officer asked the union representatives to leave, but they refused and eventually were escorted out by police officers. The Hospital had a practice of removing nonemployee solicitors from its property.

The Board found that the Hospital did not violate Section 8(a)(1) of the National Labor Relations Act (the “Act”) by prohibiting nonemployee union representatives from soliciting in its cafeteria. In so finding, the Board overruled decades of precedent that had allowed nonemployee union representatives access to public spaces, including restaurants and cafeterias within an employer’s private property.

The Board had consistently held that employers violate Section 8(a)(1) of the Act when they restrict public-area access for nonemployee union organizers who engage in solicitation and other promotional activities, but who were not “disruptive.” Under long-standing precedent, the “public space exception” permitted solicitation when the union could demonstrate that employees were otherwise inaccessible, or where the employer engaged in activity-based discrimination by allowing other kinds of solicitation but not union solicitation. In Pittsburgh Medical Center, the Board determined that the Act does not require the employer to permit the use of its facilities for union organizing when other means are readily available. Accordingly, the Board found that an employer does not have to permit access to its facility by nonemployees for promotional or organizational activity. Instead, absent discrimination, an employer may decide what types of activities, if any, it will permit by nonemployees on any part of its property.

Accordingly, an employer may prohibit nonemployee union representatives from engaging in promotional activity, including solicitation or distribution in its public spaces, provided it applies the practice in a nondiscriminatory manner and union representatives have other ways to access employees. Employers should be cautious when creating and enforcing non-solicitation policies to ensure that they apply the policies equally to all nonemployee conduct in public spaces. This change in Board precedent will be welcome news for employers, particularly hospitals, that have been frustrated by precedent that essentially created an exception to their non-solicitation policies for nonemployee union organizers.