The Trump National Labor Relations Board (NLRB) continues its pro-business course. Until 2017, the NLRB regularly attacked employer rules that it deemed restrictive, directly or indirectly, on employee’s right to organize. Employers, including non-union, were compelled to review employee handbook policies/rules to correct rules that were viewed as restrictive toward union organizing rights.
Under the Trump NLRB, the rules that were changed by the Obama NLRB (pro labor) were changed back to more management/employer focused positions. The NLRB pendulum started its way back toward the a more neutral position as far as the NLRB’s pro-labor rulings had gone. Now employers could re-adopt employee handbook rules that were changed during the Obama NLRB.
With one recent NLRB decision impacting an employer’s no solicitation policy, it can now be argued that the pendulum’s swing back is now crossing to the other side of neutral and into a solid pro management position. No solicitation rules generally hold that employees and outside parties may not solicit other employees for most anything during normal working hours.
Employees, and in some cases non-employees, may solicit or hand out literature only during non-work time. And typically, non-employees may not come onto employer property to solicit during work time. Previously the NRLB held that there was an exception to this rule where non-employees could engage in promotional or union organizing activity in public areas such as a cafeterias or restaurants unless the space was inaccessible or subject to “activity-based discrimination.”
Just this month the NLRB handed down a decision in UPMC and its subsidiary, UPMC Presbyterian Shadyside that ruled a hospital did not violate employee’s National Labor Relations Act (NLRA) rights by ejecting non-employee union organizers from the hospital cafeteria. The two non-employees were holding a meeting with employees at the hospital’s 11th floor cafeteria. The cafeteria was open to patients, their families and visitors, and employees. Union flyers and pins were on display and being handed out. The hospital had the two organizers thrown out. One month later two union organizers were again handing out union flyers but this time just in front of the cafeteria. The hospital again had the non-employees thrown off the property.
The hospital did not post any notice as to who could and could not enter and use the cafeteria. It does monitor who is using it, however. The hospital had the practice of stopping previous solicitation (for money) activities at the cafeteria.
The previous NLRB rule regarding non-employee access to employer property was “an employer may validly post his property against non-employee distribution of union literature” if the union organizers have other ways to communicate and reach employees. This was known as the Babcock standard. One exception to that rule was space that was on private property but open to the public could also be accessed by non-employees for organizing purposes. Specifically, this exception states “that non-employee 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.”
In the UPMC and its subsidiary case, the NLRB considerably narrowed the public space exception now holding that an “Absent discrimination between non-employee union representatives and other non-employees, the employer may decide what types of activities, if any, it will allow by nonemployees on its property.”
Employers now have more discretion and control over their property and who may enter onto it. It is recommended employers review their no solicitation-no literature policies to make sure they clearly state who can enter onto the property and what they can and cannot do. This should be done keeping in mind that the no solicitation policy should be applied consistently whether toward vendors, charitable activities, or union organizers in order to demonstrate the prohibition was not because of anti-union animus.
With this decision, the NLRB appears to be moving its policy beyond what may be considered its benchmark position of somewhere in the middle and allowing its pendulum to continue its swing to the management side of the arc.
Additional ASE Resources
ASE Handbook Development- If you would like your no solicitation policy reviewed, revised, or a new policy created ASE can help. Contact Mike Burns.
CCH HRAnswersNow - To find more information on how to develop policies and comply with employment and labor law, the CCH HRAnswersNow library is accessible via the ASE Member Dashboard.
Source: NLRB sets new access standard: An employer may ban non-employee union reps from public space within its facility — AGENCY REGULATION, (Jun. 19, 2019)