Labor Strategy Organizing Preventive Union Proof By Jennifer Orechwa Share Tweet Share Union organizing in public workspaces has been occurring for a long time. Image this scenario: one of your department supervisors walks into the cafeteria. Instead of finding a union authorization card, she finds a union representative chatting with employees. Spread across a dining table are some pro-union pins, flyers and brochures.With great restraint and keeping her calm, the supervisor asks the union representative what he is doing. Of course the short answer is, “Explaining the benefits of joining a union.”At that point, the supervisor asks the union representative to leave, explaining the cafeteria is only for employees. Their friends and family are only allowed when there is a work-related reason for them being there, like an employee recognition event or a family benefits workshop. The union representative refuses to leave, so the department supervisor calls the police and has the union representative physically escorted out of the building. Of course, the union files a claim with the National Labor Relations Board (NLRB). They say that the employer conducted unfair labor practices (ULPs).Union Organizing In Public Workspaces: The Real WorldAn actual situation occurred similar to the scenario just described. In the case of UPMC Presbyterian Shadyside and the SEIU healthcare Pennsylvania CTW, two union representatives entered a hospital cafeteria and met with six employees. They sat with them at two tables, eating lunch and discussing unionization. Other employees would stop, chat and look over the brochures and other pro-union items placed on the tables. At the same time, an off-duty employee passed out flyers to other people in the cafeteria.While this was going on, the Security Operations Manager received two reports that two people who are not employees were soliciting and distributing flyers in the cafeteria. One report came from a manager and one from an employee unhappy with the solicitation. The security manager went to the cafeteria to talk to the union representatives. One union representative answered quite honestly that she was talking to employees about forming a union. Witnesses to what was going on also noted the union representative had tried to talk to a woman who was sitting at another table, but she was a friend of an employee and didn’t work there.Shadyside’s Response to Union Organizing In Public WorkspacesThe first step of any union organizing campaign is spreading the message of unionization inside the workplace. Unions need internal champions. Presbyterian Shadyside’s management likely knew this since the company had been fighting unions in numerous NLRB cases over the years.The two union representatives were asked to leave because the cafeteria is for patients, their families, and employees only. The union representative asked the security manager if the non-employee sitting at the table, waiting on a friend who is an employee, would have to leave also. The security manager said “maybe” but would look into it later. The union representative refused to leave, so the manager called 911 and asked for assistance. Six police officers showed up and escorted the union representatives out of the cafeteria.When The NLRB Disagrees (With Itself!)The union reported the incidence to the NLRB, of course. They claimed the employer committed unfair labor practices (ULPs) by ejecting the union representatives, conducting unlawful surveillance of employees and requiring employees to show identification. In other words, the union said it had a right to be in the cafeteria. They also stated that employees had a right to discuss unionization and asking employees to show their identification amounted to intimidation. An Administrative Law Judge (ALJ) ruled for the union on all three ULP claims. The NLRB disagreed and reversed the judge’s ruling on two out of the three union claims. First, the union representatives didn’t have a legal right to be in the cafeteria. Second, the employer didn’t conduct unlawful surveillance by showing up in the cafeteria. The NLRB agreed with the ALJ decision on the third item. Requiring employees to show ID is unlawful because it has a chilling effect.It’s important to understand the reasoning as to why the NLRB came to a different conclusion than the ALJ. This led to a new NLRB rule. It all boils down to adhering to legal precedent and considering past employer behaviors. “Disruptive” By Any Other NameFirst, the legal reasoning concerning precedent is reviewed. The NLRB v. Babcock and Wilcox Supreme court case (351 U.S. 105 (1956)) was an important one in many respects. This case established a standard that governs non-employee access to an employer’s property when the rights of employees to engage in self-organization conflicts with the employer’s property rights. The court ruling said that employees do have the right to discuss self-organization among themselves, but non-employee organizers don’t automatically have that right in the workplace.As a reminder, Section 8(a)(1) of the NLRA forbids an employer from interfering with employee rights. Employee rights are defined in Section 7 of the NLRA.Since then, there have been NLRB decisions that expanded on the Supreme Court ruling. These have created exceptions bit by bit, along with new precedents. The NLRB has consistently found for 38 years that employers are violating Section 8(a)(1) of the NLRA when non-employee access to a public cafeteria, or other public space in the workplace, was restricted because the non-employee organizers wanted to promote unionization. This held as long as the activities were not “disruptive.” Disruptive In Public WorkspacesHow do you describe disruptive? Chances are that any employer would consider people promoting unionization as disruptive. Especially since most union solicitation is based on driving a wedge between employees and management. The NLRB decisions basically created a precedent that allows for a “public space” exception to the Supreme Court decision.As a result of the Presbyterian Shadyside case, the NLRB issued a new rule. It states: “Accordingly, we find that an employer does not have a duty to allow the use of its facility for non-employees for promotional or organization activity.” However, you cannot discriminate by not allowing non-employee union representatives into the public space while allowing other people in for solicitation activities. You can cut out union organizing in public workspaces as long as you keep all solicitations out, too.What You Did in the Past Matters in the PresentThen the NLRB applied the new rule to the circumstances of the Presbyterian Shadyside case. The “totality of circumstances” is always reviewed in any NLRB case. What are the facts of the current situation, and how has management acted on a routine basis in the past? In this particular situation, the employer didn’t have anything posted outside the cafeteria that said who is allowed to use it. Security did regularly respond to complaints of solicitation by non-employees. In the past, Presbyterian Shadyside security had removed non-employees who were engaging in any kind of promotional activity, including in and near the cafeteria. Security had ejected people begging for money, promoting a religion, and now union organizing.Consistency Is KeyThe NLRB’s new rule was only restoring what the Supreme Court had decided in Babcock and Wilson in 1956, ending liberal NLRB rulings that expanded the law beyond its intent. After applying the new NLRB rule to the Presbyterian Shadyside case, the fact the employer had acted consistently in the past and in a way that met the intent of the original law, led the NLRB to overturn the ALJ decision. The result is that you can put up signs that prohibit non-employee distribution of union property, IF the union can use other ways to communicate with employees and IF the employer doesn’t allow other distributions of materials by people who don’t work there. These are the only two exceptions to your right to exclude unions from soliciting in your public workplace spaces. First, inaccessibility (union can’t find a reasonable way of communicating with your employees). Second, activity-based discrimination (allows other non-employees to distribute materials and only excludes union representatives). It falls on the union to prove inaccessibility and discrimination.The NLRB also ruled the employer didn’t conduct unlawful surveillance. Managers have a right to observe public union activity when it occurs in the workplace, as long as Section 8(a)(1) of the NLRA is not violated. The NLRB did find the employer in violation of the law for asking for employee identification. This was said to have a chilling effect on the right of employees to get together and discuss unions.How To Keep Union Organizing Out Of Public WorkspacesMaintaining consistency is a key strategy for keeping unions out of the workplace. It is good news the NLRB has restored the right of employers to stop unions from accessing employees in public spaces in the workspace. However, Shadyside could have still found itself violating the new rule. If the security manager had not been consistent in the past as to how non-employees are treated, and if the employer had discriminated against the union by allowing other non-employees to use the public space to advance other causes, the NLRB would have upheld the ALJ. Have A Proactive StrategySometimes, it is difficult to keep up with NLRB rule changes because they happen frequently and unexpectedly. The Presbyterian Shadyside employer should have quickly consulted a labor relations professional before calling the police and evicting the union representatives. This is the type of situation that can quickly turn ugly. An even better proactive strategy is to let a labor relations consultant or labor attorney review your policies and procedures, and past events like any previously allowed onsite materials distribution by non-employees, to assess the risks of unionization and to provide guidance for future management behaviors. It’s also just as important to keep your leadership training up to speed to keep your organization union proof. Get the consultation that your company needs to keep union organizing out of the public workspaces. You just never know when a friendly union representative may saunter in with a bag full of brochures to get a quick bite to eat.