By Robert G. Brody and Luis A. Torres
The Biden Administration’s unbridled support of Labor continues. National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo, the NLRB’s chief prosecutor, released an advice memorandum on May 25, 2022, arguing that the Board has improperly been allowing employers to ban unions from accessing portions of their property held open to the public. The NLRB is urging private property rights take a back seat to the right to unionize.
Abruzzo issued the advice memorandum in response to LT Transportation, Case 05-CA-281-089. In LT Transportation, a union was trying to unionize bus drivers. As part of their efforts the union had their representatives stationed along bus stops, which the bus company privately owned but held open to the public. The Company ordered the union off the bus stop property and the union filed charging claiming this was illegal. When the union successfully unionized the bus drivers they withdrew its complaint against LT Transportation. However, while the case was pending, Abruzzo argued the union’s activities should be allowed and Board precedent disallowing these actions should be overturned.
The basis of Abruzzo’s argument is that current Board precedent is contrary to the Supreme Court’s decision in NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956). The Supreme Court ruled that employers could exclude non-employee union representatives in select circumstances. Subsequent Board interpretation allowed employers to ban union representatives from public property if the employees are otherwise accessible to the union. However, employer bans were not allowed if the employer discriminates against the union by allowing other groups to access the public spaces.
If Abruzzo has her way, employers will be forced to allow union representatives access to all portions of their property held open to the public. This is a large departure from Board precedent. This is one of the many initiatives Abruzzo is simultaneously pursuing. If you hold portions of your property open for public use, be on the lookout for updates.
Brody and Associates regularly advises management on all issues involving unions, staying union-free, complying with the newest decision issued by the NLRB, and training management on how to deal with all these challenges. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560