In the case of UPMS Presbyterian Sunnyside, 368 NLRB No. 2-June 14, 2019, the National Labor Relations Board granted Employers greater rights to limit union activity on their premises.

Under previous Board law, under the “public space” exemption, Employers had to allow non-Employee union representatives access to the “public areas of their property”, including restaurants and/or cafeterias that were open to the public to engage in promotional or organizational activity as long as their activities “were not disruptive”. This had become the Third Prong (Public Space Exception) which established the right of union to do union solicitation on company premises. In the 1956 NLRB vs. Babcock and Wilcox Company (351 U.S. 105 (1956), the United States Supreme Court established the standard which governed non-Employee access to an Employer’s property when it held that an Employer could validly protect its property against non-employee union solicitation unless the union had no other reasonable means of communicating its message to Employees other than through access to the Employer’s facility (the Inaccessibility Exception) or the Employer had discriminated by treating non-Employee solicitations of a similar character differently than the union’s solicitations (the Discrimination Exception), The “public space exception” was created in 1981 in Montgomery Ward & Company, 256 NLRB 800 (1981), and was called the Third Exception.

Under the UPMC case, the Board has established a significant Employer victory for Employers who maintain public dining areas:

Accordingly, we find that an Employer does not have a duty to allow the use of its facility by nonemployees for promotional or organization 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. Absent discrimination between nonemployee union representatives and other nonemployees – i.e., ‘disparate treatment where by rule or practice a property owner’ bars access by nonemployee union representatives seeing to engage in certain activity ‘while permit[ting] similar activity in similar relevant circumstances’ by other nonemployees-the Employer may decide what types of activities, if any, it will allow by nonemployees on its property.

That Employer may now lawfully maintain and enforce a valid written no-solicitation policy to exclude non-Employee union organizers from the facility as long as they have other reasonable means of communicating with Employees and, furthermore, they do not discriminate by treating “other similar groups” (charity groups, etc.) differently in allowing them access to Employees in “public space areas”. While this decision will provide Employers who have a validly written no solicitation policy with a powerful tool in confronting union organizers about unwanted activity in their public spaces, it will be a situation where confrontation and enforcement of the validly written no solicitation policy will have to be strictly enforced against ALL NON-EMPLOYEE SOLICITATION.

Questions? Contact attorney Walter Liszka in our Chicago office at (312)629-9300 or by email at waliszka@wesselssherman.com.