Employers who operate hospitals, hotels, cafes, casinos, and like facilities open to the public may now tell the union representatives engaged in organizing to “get out,” so long as those organizers are not their employees. The NLRB in UPMC, 368 NLRB No. 2, dated June 14, 2019, overruled a 38 year old precedent that allowed nonemployee union organizers to use public areas of an employer’s property to solicit or promote employees to join the union, as long as they did not disrupt the employer’s operations. The NLRB, in restoring property rights of employers stated that an employer may prohibit nonemployee union representatives from engaging in promotional activity, including solicitation or distribution, in public areas, so long as it applies the practice in a nondiscriminatory manner by prohibiting other nonemployees from engaging in the same conduct. In other words, an employer must have a policy that prohibits all solicitation and distribution from nonemployees, no matter the content, in order to bar a union representative from doing the same in a public area.
Before banning union organizers from the public spaces of your business, have one of our labor and employment attorneys review your policies regarding solicitation and distribution by nonemployees to make sure it complies with this recent NLRB decision.