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NLRB permits employers to eject non-employee union agents from their property

Reversing a 1999 decision, Sandusky Mall Co., the Board upheld an employer’s right to eject non-employee union agents from its premises, even though it had routinely granted other non-employees’ permission to solicit on the same premises for “civic, charitable and promotional activities.” In doing so the Board held that a union’s presence to solicit customers to join a boycott is entirely dissimilar from Girl Scout cookie sales, firefighter boot drives, Salvation Army drives, Lion’s Club activities, Red Cross blood drives and church activities. Employers may now comfortably permit such other activities without worry that they could be used by union activists to justify the union’s presence.

The Board’s ruling not only reinstated the exception permitting employers to treat civic, charitable and promotional activities” differently from unions but suggests the Board will now require an even higher showing for unions. The Board held that the new burden of proof will require the union (and NLRB General Counsel) to prove that the employer allowed “comparable organizational activities.” The Board did not give examples of what might be considered “comparable organizational activities.”

Source: Kroger Limited Partnership I Mid-Atlantic, 368 NLRB No. 64 (2019).

DC Circuit affirms NLRB’s ruling that off-duty employees have protected right to picket near hospital entrance

Historically labor practitioners (and the NLRB and the courts) have analyzed picketing versus handbilling differently. As a general rule, handbilling (i.e., the distribution of literature) has been allowed in many circumstances where picketing (the holding of a picket sign) is not. For example, in hospitals, since the Board’s 1945 Republic Aviation decision, handbilling, like solicitation (verbal requests for support) has been presumptively permitted “outside of immediate patient-care areas, such as in hospital lounges and cafeterias … unless the hospital can demonstrate the need for the restriction ‘to avoid disruption of health-care operations or disturbance of patients.’” 

In this case, the NLRB extended that approach to picketing, and the D.C. Circuit has affirmed its approach. The DC Circuit cautioned that the employer might have been able to block the picketing if it could prove that the “likelihood” that the otherwise protected activities would disturb patients or disrupt patient care. 

It is likely that future courts (and the Board) will limit this ruling to its facts where:

  • Off-duty employees
  • Of a hospital
  • Wish to picket by merely “holding … picket signs—without any chanting, marching, or obstructing of passage”
  • In a manner where they stand “stationary” and do not patrol
  • In a location, which even if near the hospital entrance, does not impede pedestrians, traffic or other operations
  • And do so without the likelihood of disturbing patients or disrupting patient care.

Source: Capital Medical Center v. NLRB, (D.C. 8/10/18).

Rat balloon soon to be deflated by NLRB?

Bloomberg BNA reports that the NLRB General Counsel is looking to litigate one of organized labors’ favorite forms of protest: A giant inflatable rat. The effectiveness of the baloon is certainly questionnable, but it is equally undeniable that the presence of one draws attention. Often inflated in the back of a pickup truck, parked lawfully at a meter, or simply on the side of a street where a vehicle might otherwise park, these rats typically stand about twice as tall as a human: Usually under any local ordinance’s height limits.

The rats often draw much more attention than protesters might simply standing and handing out information to passersby, and that’s the point: Labor law generally distinguishes between handbilling and picketing. Handbilling is typically seen as pure speech, and as such, protected by the First Amendment, and subject to limited governmental constraints. Picketing is more easily constrained; picketing is subject to strict rules under the National Labor Relations Act for example.

In the NLRB’s 2011 Sheet Metal Workers Local 15, the Board held these rats were more like handbilling than picketing, and as such constitute symbolic speech within the First Amendment. Now, according to Bloomberg BNA, the NLRB General Counsel is looking to re-litigate that holding, contending that they should, instead, be subject to the picketing rules, and/or are at most a form of commercial speech. Commercial speech is generally afforded less protection under the First Amendment, though, in a perhaps curious twist, recent rulings by the Supreme Court seem to be suggesting the Court will afford put it on a higher constitutional footing.