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Biden Board vs. Trump Board: Here We Go Again! (Second Installment)

March 10, 2021

Last week, we provided you with the first of our six analyses of 14 decisions of the Trump Board that the soon-to-be Biden Board majority likely will seek to overrule in a rush to return to the more pro-union stance of the former Obama Board. 

This Second installment of our Client Alerts addresses three decisions involving union and off-duty employees’ Access to Employer-Owner’s property.

The Third installment, which you can expect next week, addresses Joint Employer Rulemaking; and Independent Contractor and Employee Status.  The Fourth Alert will address “Contract Coverage” vs. “Clear and Unmistakable Waiver”; Contractual Past Practices Survive CBA Expiration; and Intermittent Strikes as Unprotected Activity.  The Fifth installment addresses Post-Certification Bargaining of Discharges and Suspensions; and Employment Arbitration May Lawfully Preclude Collective Claims.  The Sixth Alert addresses Micro-Units and Unit Scope; and Withdrawal of Recognition and Re-establishment of Union Majority.     

ACCESS TO EMPLOYER-OWNER’S PROPERTY.

A. BEXAR COUNTY PERFORMING ARTS CENTER FOUNDATION, 368 NLRB No. 46 (Aug. 23, 2019).

In Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts, the Trump NLRB ruled that a property owner may restrict the off-duty employees of its on-site contractor from entering its property to engage in union organizing or other National Labor Relations Act (“NLRA”) Section 7 protected-concerted activity.  368 NLRB No. 46, slip op. at 2 (Aug. 23, 2019).  According to the Trump Board, a property owner must allow off-duty contractor-employees onto its property to engage in NLRA-protected Section 7 activity where: (1) the contractor-employees work both regularly and exclusively on the property; and (2) the property owner fails to show that the contractor-employees have one or more reasonable, non-trespassory, alternative means to communicate their message.  Id. at 2–3.  In so holding, the Trump Board overruled two Obama Board precedents.

First, in New York New York Hotel & Casino, the Obama Board articulated a different standard and held that off-duty employees of an on-site contractor who “regularly and exclusively” worked on a property owner’s property had the right to access the property for Section 7 activity, unless the owner could show that such activities would significantly interfere with the use of its property, or the owner could assert another legitimate business reason for barring off-duty access (e.g., to maintain production or discipline).  356 NLRB 907, 918–19 (2011).  The second Obama Board decision that was overruled had eliminated New York New York’s “exclusivity” requirement.  Simon DeBartolo Group, 357 NLRB 1887, 1888 n.8 (2011).

It is expected that the Biden NLRB will return to the Obama-era precedent and allow off-duty contractor-employees access to property for Section 7 activity based upon more employee-oriented standards.

B. KROGER LIMITED PARTNERSHIP I MID-ATLANTIC, 368 NLRB No. 64 (Sep. 6, 2019).

In Kroger Limited Partnership I Mid-Atlantic, the Trump NLRB held that an employer is not required to grant non-employee union representatives access to its premises for  organizing purposes even if the employer has permitted other third parties to engage in civic, charitable, or commercial solicitations there.  368 NLRB No. 64, slip op. at 2 (Sep. 6, 2019).  In Kroger, the employer excluded from its exterior premises union agents who sought to solicit customers to boycott the employer’s store; the union claimed that it was being subjected to discriminatory treatment because the employer previously allowed the Girl Scouts and the Salvation Army to solicit contributions from customers on its exterior premises.  Id. at 1.  The Trump Board ruled that, in order to establish that an employer unlawfully denied non-employee union agents access to its property in violation of the NLRA, it must be shown that the employer allowed access to other non-employees for activities similar in nature and relevant circumstance to those in which the union agents sought to engage.  Id. at 2.  The Trump Board held that civic, charitable, or commercial solicitation activities were not similar to union solicitation of a consumer boycott.  Id.

Kroger overruled Sandusky Mall Co., in which the Obama Board held that employers are required to grant access to non-employee union agents for Section 7 purposes if the employer has allowed substantial civic, charitable, and promotional activities by other non-employees on it premises. 329 NLRB 618, 622 (1999). 

The Biden Board is likely to return to the Sandusky Mall rule to ease a union’s ability to access employer premises.

C. UPMC PRESBYERIAN HOSPITAL, 368 NLRB No. 2 (June 4, 2019).

In UPMC Presbyterian Hospital, the Trump NLRB held that an employer does not have a duty to allow the use of public-access areas of its facility, i.e., the hospital’s cafeteria, by non-employee, union agents for organizational activities, unless the employer discriminated against the union by permitting similar, non-employee access for solicitation or promotional purposes (the Trump Board would permit union access in the rare case where the union has no other reasonable means of communicating with employees).  368 NLRB No. 2, slip op. at 4 (June 4, 2019).

The UPMC Presbyterian Hospital decision overruled long-standing Board law established in Ameron Automotive Centers, 265 NLRB 511 (1982) and Montgomery Ward, & Co., 256 NLRB 800 (1981), that required employers to allow non-employee, union representatives access to public spaces on their premises, such as cafeterias, for NLRA-protected, organizational activity if they are not “disruptive.”

The Biden Board can be expected to return to the prior legal standard. 

NOTICE: Material provided on this website has been prepared by Kauff McGuire & Margolis LLP solely for general informational purposes, and it is not intended to and does not constitute legal advice.  Material provided on the website is not privileged and does not create an attorney-client relationship with the Firm or any of its lawyers.