NLRB rules: Unions may try to organize employees in nonwork areas

In December 2017, the National Labor Relations Board handed down a decision that changed the test for determining whether employers have engaged in unfair labor practices. The new test attempts to balance the right of employees to engage in “concerted activity” to improve their working conditions (such as attempting to unionize) and the rights of the employer to control the workplace and enforce corresponding workplace rules.

In its decision—Boeing Company and Society of Professional Engineering Employees—the NLRB concluded that an employer’s “no camera” rule was a legitimate exercise of management rights to prevent unauthorized recording and access to classified materials in the workplace. It said the right to prevent classified information from leaking outweighed the right of workers to document poor working conditions.

Now, the NLRB has ruled in a Pennsylvania case, using the new balancing test for the first time. It concluded that the employer’s stated reasons for limiting worker activities were weighted too heavily against the employees’ right to engage in concerted activity.

Like many organized labor issues, both of these cases came down to where and when that concerted activity can take place.

Recent case: The Service Employees International Union sought to organize health care workers into a union at the University of Pittsburgh Medical Center. The hospital had a rule limiting off-duty solicitation in the workplace.

An off-duty worker entered the hospital cafeteria, where he attempted to get co-workers who were on their breaks to sign union cards. A hospital manager confronted him and told him his activities violated handbook rules, claiming the cafeteria area was an essential part of the hospital’s workplace.

The union filed an unfair labor practice charge with the NLRB, which applied the new test.

The hospital tried to argue that it had a legitimate reason for trying to exclude off-duty solicitation in the cafeteria. It contended that patients could be present and that staff members sometimes needed to track down patients or family members in the cafeteria to update them on medical issues. That made the cafeteria a workplace, it argued.

The NLRB balanced the employer’s stated reason against the right to organize and concluded that the test weighed in favor of the employees. The cafeteria was not part of the patient care areas, where solicitation could be banned, it concluded. (UPMC et al. and SEIU et al., NLRB, 2018)

Final note: The case also considered whether a management statement that it had cameras that could identify whether employees were distributing materials at the entrances to the hospital was an unfair labor practice designed to threaten employees trying to exercise their right to organize.

The NLRB concluded that the implication that employees were under surveillance could be viewed as another unfair labor practice. The board then ordered the hospital to cease and desist from surveillance and threatening surveillance and to delete the no-solicitation rule from its handbook.

Advice: Employers should now be prepared to justify any handbook rule that could conceivably be construed as curtailing the right to organize and engage in concerted activity. Be prepared with a legitimate and, if possible, compelling reason for the rule. Particularly troublesome are rules against criticizing the company, its managers and policies.