April 14, 2021

Volume XI, Number 104


April 13, 2021

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April 12, 2021

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NLRB Aligns With Supreme Court Precedent On Nonemployee Union Organizer Access To Company Property

A recent decision from the National Labor Relations Board (NLRB) reversed prior Board authority that had required employers to permit nonemployee organizing in public areas of their property. The NLRB held that the 38-year old rule misinterpreted existing U.S. Supreme Court precedent and was inconsistent with subsequent Supreme Court cases.

A 2-1 Board majority in UPMC Presbyterian Hospital returned to the roots of the 1961 seminal Supreme Court decision in NLRB v. Babcock & Wilcox Co., which held that nonemployee organizers had the right to engage in organizing activities on the property of the employer in only rare circumstances. The court had found that a prohibition on such activity was permitted so long as other reasonable channels of communication were available to the organizers and so long as the rule excluding them was not applied in a discriminatory manner.

In UPMC, the Board explained that Babcock & Wilcox had become perverted by inaccurate board interpretations. Beginning in the 1980s, Board cases began to carve out a “public space” exception not provided for by the Supreme Court. For example, in Ameron Automotive Centers, the Board said that when organizers seek access to a public area of the employer’s property, “Babcock & Wilcox criteria need not be met, since nonemployees cannot in any event lawfully be barred from patronizing the restaurant as a general member of the public.”

The NLRB has put this rationale to rest. The Board sided with several circuit courts that had held the principles of Babcock & Wilcox “apply to nonemployee union access regardless of whether the area on the employer’s private property in which the union wishes to conduct business is closed or open to the public.” These nonemployees have no blanket right to engage in organizing activities on employer property.

The ruling shows a willingness by this Board to revisit NLRB precedent incorrectly decided.

© 2021 BARNES & THORNBURG LLPNational Law Review, Volume IX, Number 170



About this Author

Scott Witlin Employment lawyer Barnes Thornburg

Scott J. Witlin is a partner and the administrator of the Labor & Employment Department in the firm's Los Angeles office. He is Co-Chair of the firm's Wage and Hour Practice Group and a member of the firm's Entertainment, Media and Sports Practice Group.

Scott assists companies in dealing with the challenges of employing workers in California and throughout the U.S. Scott's practice includes both traditional labor and employment law matters, including wage and hour class actions, arbitrations, collective bargaining negotiations, compliance with various guild and union agreements...

Thomas Payne Labor and Employment Attorney Barnes Thornburg Law Firm Indianapolis

Thomas Payne is an associate in the Indianapolis office of Barnes & Thornburg, where he is a member of the Labor and Employment Department.

Prior to joining Barnes & Thornburg full time, Thomas served as a summer associate in the firm’s Indianapolis office. He also gained experience as a pro bono law clerk for the Indiana Office of the Attorney General and for the Honorable Lance Hamner of the Johnson County Superior Court.

With an eye toward becoming a lawyer, Thomas began his education at Purdue University,...