General Counsel Abruzzo Looks To Overturn Board Precedent Again: This Time, Seeking To Broaden Union Access To Public Spaces

• Published date: 01 June 2022
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations
• Law Firm: Proskauer Rose LLP
• Author: Mr Steven Porzio, Joshua S. Fox and Caroline Libby

In an Advice Memorandum released on May 25, 2022, NLRB General Counsel Jennifer Abruzzo laid out a blueprint for changes she'd like made to Board precedent concerning union representatives' access to employer property. At issue is a pair of 2019 rulings by the NLRB in UPMC, 368 NLRB No. 2 (2019) and Kroger Ltd. P'ship, 368 NLRB No. 64 (2019), which together provided employers with greater latitude to bar union representatives from accessing public spaces within the employer's facilities and grounds.

While an Advice Memorandum does not constitute a change in the law, it certainly gives a clear indication of how the current General Counsel will advise the Regions in deciding whether and how to prosecute future cases. This most recent GC memo makes good on initiatives she articulated last year (previously discussed here). The issue of union access to employer facilities was specifically foreshadowed as a topic for reassessment in the General Counsel's "Mandatory Submissions to Advice GC Memorandum 21-04," released on August 12, 2021.

Background - LT Transportation, Case 05-CA-281089

This Advice Memorandum is the result of an issue raised in a recent case before the Board, LAZ Parking Mid Atlantic, LLC, d/b/a LT Transporation, Case 05-CA-281089.

There, the conduct at issue was that the company wrote a letter to the union that was trying to organize the company's drivers, prohibiting the union's representatives from going to stops along the shuttle bus routes to talk to the drivers. The union argued that barring non-employee union agents from boarding the employer's publicly-used shuttles violated Sections 8(a)(1) and (3) of the NLRA.

The union ultimately withdrew the charges after winning the election to represent the company's shuttle bus drivers. However, the closing of the case allowed GC Abruzzo to issue the Advice Memorandum and opine on the legality of the prohibition of the union's access to public facilities.

The History of Non-Employee Union Access Cases Pre-2019

In 1956, the Supreme Court issued NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), which held that employers could exclude non-employee union representatives from an employer's property unless one of two conditions are present:

• Employees are otherwise inaccessible to the union; or
• The employer has discriminated against the union by prohibiting it from using the employer's facilities, but provides access to non-union groups.

After Babcock, the Board was faced with a number of...