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Employers May Prohibit Non-Employees From Organizing On The Employers’ Property

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On Friday, June 14, 2019, the National Labor Relations Board (“NLRB” or “Board”) issued a decision of significance to employers. In particular, the NLRB decision affects employers, such as  hospitals and hotels, that have areas of their property open to the public.

Reversing established precedent, the Board held that employers may prohibit non-employee union representatives  from engaging in promotional or organizational activities (union solicitations and distributions of organizing materials) on the employers’ property, including those areas that are open to the public. UPMC 368 NLRB No.2 (June 14, 2019).

Two important exceptions apply to this new rule : 1) inaccessibility; and 2) discrimination.

Under the inaccessibility exception, the union would have to show that the employer may not prohibit organizational activities on its property by non-employees, because the union has no reasonable means of communicating  its message to employees, other than on the employer’s premises that are open to the public. Under the discrimination exception, the union would have to show that the employer may not prohibit non-employee union organizers from organizing activities on the employer’s premises, because the employer permits other outside groups to engage in promotional activities on said premises.

When confronted with solicitation or other promotional activities by non-employee union representatives on the employers’ private property, employers may want to consult with legal counsel regarding their right to prohibit such activities and require the removal of said representatives from the employers’ property.