Section 14 Discrimination Against Union Solicitation or Distribution

• Library: Employer-Employee Law 2008

The United States Supreme Court has held that nonemployee union supporters may come onto an employer’s property if the employer’s notice or order discriminates against a union by allowing other distribution. NLRB v. Babcock & Wilcox Co.,
351 U.S. 105, 112 (1956). This discrimination exception has been applied inconsistently. Most court decisions hold that an employer who allows distribution and solicitation on its property by charitable and civic organizations does not discriminate against the union when it prohibits the union from doing the same. The NLRB’s position on this issue is less clear.

In Riesbeck Food Markets, Inc. v. NLRB, 91 F.3d 132 (4^th Cir. 1996), the Fourth Circuit held that an employer’s limited solicitation policy as applied against union handbilling was not discriminatory, even though the owner allowed civic and charitable organizations to solicit on its property. The court refused to strictly apply the Babcock & Wilcox, 351 U.S. 105, exception, stating that an owner could distinguish between charitable organizations and unions because the union’s “do-not-patronize” message undermined the sale of goods and services to customers, while the charitable solicitation had no such negative message.

In Baptist Medical System v. NLRB, 876 F.2d 661 (8^th Cir. 1989), the union wanted to use an area that the employer had designated for public use. The court stated that “[b]y inviting the public to use an area of its property, the employer does not surrender its right to control the uses to which that area is put.” Baptist Med. Ctr., 876 F.2d at 664. Therefore, the employer could prohibit nonemployee union organizers from soliciting in the hospital’s public restaurants even if the activity was not disruptive of the hospital’s business. There was no evidence that the hospital allowed solicitation by nonemployees on its premises, and the union had sufficient alternative access to the employees.

In NLRB v. Southern Maryland Hospital Center, 916 F.2d 932
(4^th Cir. 1990), the court held that there was no evidence of discriminatory enforcement of a hospital’s no-solicitation policy when friends and relatives of hospital employees were allowed in the hospital cafeteria but union organizers were prohibited. The admission of employees’ friends and relatives into the cafeteria for meals was not similar to admitting other entities for solicitation.

In Sandusky Mall Co., 329 N.L.R.B. 618 (1999), the NLRB adhered to its stance that “an employer that denies a...