NLRB Provides Hospitals and Other Employers Greater Control over their Private Property Available to the Public

Date   Jun 18, 2019

Executive Summary: In a 3-1 decision, the National Labor Relations Board (“NLRB” or the “Board”) recently ruled that employers may prohibit nonemployee union representatives from soliciting or promoting union membership within common areas of an employer’s business – such as public restaurants and cafeterias – as long as the employer does so in a non-discriminatory manner. See UPMC and its Subsidiary, UPMC Presbyterian Shadyside, Single Employer d/b/a UPMC Presbyterian Hospital and d/b/a UPMC Shadyside Hospital and SEIU Healthcare Pennsylvania CTW, CLC, Case 06-CA-102465 (June 14, 2019). This decision provides employers with greater control over the use of their facilities and explicitly overrules precedent inconsistent with this determination.


Over 60 years ago, in NLRB v. Babcock, 351 U.S. 105 (1956), the Supreme Court ruled that employers may prohibit nonemployee union organizers from promoting their union on company property, as long as the union has other available channels of communication (i.e. the inaccessibility exception) and the employer prohibits similar promotions by other organizations (i.e. the discrimination exception). In the decades that followed, the Babcock standard developed another exception, the “public space” exception at issue in UPMC. The “public space” exception allowed nonemployee union organizers access to a portion of the employer’s private property open to the public, such as a cafeteria or restaurant. Specifically, nonemployee union organizers could not be denied access to employer cafeterias and restaurants open to the public so long as the organizers used the area in a fashion consistent with its intended use and were not disruptive.

The Board’s Decision in UPMC

In UPMC, two nonemployee union representatives sat in the hospital cafeteria with a group of employees and discussed union campaign matters. The union representatives displayed union flyers and pins on the tables where they were seated. After the union representatives had been in the cafeteria for over an hour, hospital security requested the nonemployee union representatives to leave, as the hospital had an established practice of removing nonemployees engaged in promotional activity in the cafeteria. The union representatives refused to leave and, eventually, six police officers escorted the union representatives out of the cafeteria.

Expressly overruling the “public space” exception to the Babcock standard, the Board ruled:

an employer does not have a duty to allow the use of its facility by nonemployees for promotional or organizational activity. The fact that a cafeteria located on the employer’s private property is open to the public does not mean that an employer must allow any nonemployee access for any purpose.

Furthermore, the Board held that the hospital did not run afoul of the Babcock discrimination exception because the hospital prohibited all nonemployees from engaging in promotional activities in its cafeteria, not just union organizers.

Bottom Line

The Board’s decision in UPMC provides employers with public spaces, such as restaurants and cafeterias, with greater control over their property. Employers with public spaces should consider reviewing their handbooks, policies, and practices to take advantage of this change in the law.

If you have any questions regarding this Alert, please feel free to contact the authors, Henry Warnock,, a partner in our Atlanta office and member of FordHarrison’s Labor Relations and Healthcare Practice Groups or Patrick Corley,, an associate in our Atlanta office. Of course, you may also contact the FordHarrison attorney with whom you usually work.