NLRB Allows Company To Eject Union Organizers From Its Public Cafeteria


by Steve Bogue

sbogue@mcgrathnorth.com
(402) 341-3070

The National Labor Relations Board (NLRB), in a recently issued decision, upheld the right of a company to eject union organizers from its cafeteria, even though the cafeteria was accessible to the public. In doing so, it concluded that the company’s property rights outweighed the rights of union organizers to enter into a public area of its otherwise private facility. However, the NLRB noted that a company may not discriminate against union organizers when regulating access to its public areas. A deciding factor in this decision was that the company had also ejected other outside soliciting organizations from the cafeteria including members of a religious order who were attempting to distribute handbills in the same cafeteria.

In the course of its decision, the NLRB noted that for many years it had granted union organizers almost unrestricted access to the public areas of a private company’s facilities. However, by virtue of a 1956 U.S. Supreme Court decision, if a union wanted to access public portions of private facilities for the purposes of organizing, it would have to prove that all the employees of that facility were otherwise inaccessible, so that it could not reach them for the purposes of engaging in organizing, or, on the other hand, prove that the employer discriminated against the unions by allowing access to other outside organizations for the purposes of making solicitations of company employees.

Looked at in another light, it is clear that companies which have been careful to regulate access to their facility by charities or other outside entities for the purposes of soliciting must continue to uniformly apply that policy. The general rule is that the more outside entities that are given access, the less likely a company will be able to successfully defend against an unfair labor practice resulting from the exclusion of union organizers.

During the previous Presidential administration, it was noted that the NLRB, the majority of which is always appointed by the party occupying the White House, had overturned some many years of precedents by fashioning policies that were much more union-friendly. The NLRB’s most recent appointees have given companies much greater latitude to formulate and enforce company rules, even though they might interfere with employees’ or union’s rights under the National Labor Relations Act. More specifically, it has reconsidered its position on employees’ use of social media, to complain about working conditions and has redefined the types of “concerted (group) activities” which are protected by the National Labor Relations Act. A particularly significant decision still awaits reconsideration by the Board. That decision, handed down in 2014, held that companies could not prohibit employees from using their work email account for union organizing purposes.

This decision illustrates the importance of keeping an eye on the various governmental agencies which regulate workplace conduct and employee rights. We will monitor those agencies and decisions and keep our readers advised.

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