NLRB Advice Memoranda, LAZ Parking Mid Atlantic, LLC, d/b/a LT Transportation, National Labor Relations Board, (Jan 4, 2022)

The Region submitted this case for advice because it implicates UPMC, 368 NLRB No. 2 (2019), and Kroger Ltd. P'ship, 368 NLRB No. 64 (2019), and their holdings regarding union access to employer property. We conclude that the Employer violated Section 8(a)(1) when it barred nonemployee union agents from boarding LAZ shuttles under UPMC and Stowe Spinning. [1] Accordingly, a Section 8(a)(1) complaint should issue, absent settlement. However, the Region should use this case as a vehicle to urge the Board to overrule UPMC as it undermines the purposes of the Act by inappropriately narrowing the discrimination exception set forth by the Supreme Court in Stowe Spinning and Babcock & Wilcox. [2] The Region is similarly authorized to use this case to argue that Kroger should be overruled on the same grounds.

FACTS

The case involves an organizing campaign for employees of LAZ Parking Mid Atlantic, LLC ("the Employer" or "LAZ"), which provides shuttle bus transportation services to patients, visitors, and staff of MedStar Washington Medical Center and Children's National Hospital. Starting in late 2020 and through around July 2021, as part of an organizing drive, [3] a representative of the Amalgamated Transit Union, AFL-CIO/CLC ("the Union"), spoke to LAZ employees by going to stops along the route and talking to drivers when they would step off the bus for a few minutes. In ​     ​ conversations with the drivers, the Union representative focused on discussing their working conditions and safety during the COVID-19 pandemic. The Union representative would also occasionally ride the buses from stop to stop and would talk to the drivers on the bus. Those conversations involved the drivers' work, but did not get overly detailed about the specifics of organizing inasmuch as other passengers were present and the bus was armed with a camera. Indeed, it was not out of the ordinary for passengers to speak to drivers either. The Union representative did not distribute literature while the operator was driving the bus, but would provide business cards to drivers when exiting the bus, and, prior to the election, ​     ​ passed leaflets out at shuttle stops and gave drivers extra copies to distribute to each other.

On August 9, 2021, Employer counsel emailed Union counsel the following: [4]

It has come to our attention that union agents are boarding LAZ shuttles to distribute literature. Please be advise [sic] that the shuttles are for LAZ clients, their employees, patients and escorts. Any un I on [sic] agent boarding a LAZ shuttle will be considered a trespasser and LAZ will take all legal action to prevent and remedy the situation.

On August 10, the Union filed the instant charge and sent the Employer a copy of the charge. In response, the Employer sent Union counsel another email to clarify that the communication was intended to apply to nonemployee agents of the Union:

The email that I sent you last night was not aimed at Laz employees. The term union agents was meant to encompass non employee union agents.

I would expect that you would withdraw the charge in light of the correction. If you communicated the information to any Laz employee, please correct the statement.

On August 11, the Employer followed up with a letter, sent by email, again containing the same prohibition and enclosed a copy of the Employer's solicitation policy, which it advised was available to employees through the company's portal "LAZ People." This charge alleges that the Employer violated Section 8(a)(3) and 8(a)(1) when it prohibited nonemployee union agents from boarding its shuttle buses. [5]

ACTION

We conclude that the Employer violated Section 8(a)(1) by prohibiting nonemployee union agents from boarding LAZ shuttles under UPMC and Stowe Spinning. Accordingly, a Section 8(a)(1) complaint should issue, absent settlement. [6] However, we further conclude that UPMC, which eliminated the so called "public space exception," was wrongly decided and the Region should urge the Board that it be overruled. Further, inasmuch as the Board's decision in Kroger dealt with related concepts, it too undermines the purposes of the Act by inappropriately narrowing the discrimination exception set forth by the Supreme Court in Stowe Spinning and Babcock & Wilcox, and thus should also be overruled.

I. The Employer's Prohibition of Nonemployee Union Agents from Boarding its Shuttles Violates Section 8(a)(1) Under Extant Law.

In NLRB v. Babcock & Wilcox Co., the Supreme Court set out the general framework to analyze whether an employer has unlawfully excluded nonemployee union representatives from its property in violation of Section 8(a)(1) of the Act, permitting employers to exclude nonemployee distribution of union literature, with two exceptions: (1) if employees are inaccessible to the union; or (2) if the employer "discriminate[s] against the union." [7] The discrimination exception originated in the Supreme Court's decision in Stowe Spinning, where the Court agreed with the Board's finding that the employer engaged in unlawful discrimination in violation of Section 8(a)(1) of the Act when it permitted outside community groups to use its meeting hall, while prohibiting union organizers from doing so. The Court agreed with the Board's finding that this conduct “constituted unlawful disparity of treatment and discrimination.” [8] The Court observed that “[i]t is not ‘every interference with property rights that is within the Fifth Amendment [and] [i]nconvenience or even some dislocation of property rights may be necessary in order to safeguard the right to collective bargaining.”’ [9]

In the years after Babcock and Wilcox and Stowe, the Board was confronted with many different situations calling on its interpretation of the discrimination exception. [10] Among those were employers whose private property included public spaces, i.e., spaces either contained within, or adjacent to yet part of, an employer's private property but which were open to the public, and whether an employer, by virtue of allowing the public to utilize a particular portion of its otherwise private property effectively discriminates when it excludes the union. The Board regularly found violations where unions were excluded from these public spaces where organizers used them consistent with their intended use and were not disruptive. [11]

However, in UPMC, the Board overturned prior law governing nonemployee access to public spaces on employer property. Instead, the Board effectively limited the Babcock/Stowe discrimination exception, permitting an employer to lawfully eject from its otherwise public hospital cafeteria nonemployee union organizers discussing union matters. The Board determined that the public space exception was irreconcilable with Babcock & Wilcox, which held that there are only two narrow exceptions (inaccessibility and discrimination) to the general rule that an employer may deny access to nonemployee organizers. Thus, the majority overruled Ameron Automotive Centers, 265 NLRB 511 (1982), Montgomery Ward & Co., 256 NLRB 800 (1981), enfd. 692 F.2d 1115 (7th Cir. 1982), and other cases to the extent they created a "public space" exception. The Board also resurrected the definition of discrimination stated in Jean Country, 291 NLRB 11 (1988), abrogated on other grounds by Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), that is, disparate treatment is only found where, by rule or practice, a property owner bars access to nonemployee union representatives seeking to engage in certain activity while permitting "similar activity in similar relevant circumstances." [12] Significantly, in addressing the dissent, the Board explained that its decision did not conflict with the Supreme Court's holding in Stowe Spinning because, in UPMC, it relied on “the conduct of the nonemployee organizers” rather than the identity of the union representatives (emphasis added). [13]

In the instant case, there is insufficient evidence to show that the Union (organizer engaged in any conduct on the buses ​     ​ boarded. ​     ​ did not sit behind a table. ​     ​ sat in a seat as any other passenger would and, at most, spoke to drivers about work – essentially no different from the discussions other passengers on the bus were regularly having with the drivers. Thus, the Employer's prohibition here, based not on conduct, but identity, is no different than the prohibition on using the meeting hall the Court found discriminatory in Stowe Spinning. Indeed, the Employer's directive broadly prohibits non-employee organizers on the public buses regardless of their purpose in boarding the bus; whether they are patients or even merely visiting a patient, they are classified differently than other patients and visitors on grounds that they are non-employee organizers. This is a classic form of discrimination. And these bus shuttles are essentially no different than the cafeteria at issue in UPMC inasmuch as they are open to the public and, even if work is done in a limited way in those spaces, absent evidence of interference with employees' performance of their duties, a blanket prohibition on nonemployee union agents' presence is overly broad under UPMC. In the context of solicitation and distribution, the Board has rejected the argument that incidental work activities, such as security, maintenance, and gardening, convert those spaces into work areas. See Santa Fe Hotel, Inc., 331 NLRB 723 (2000) citing U. S. Steel Corp., 223 NLRB 1246, 1247-1248 (1976) (contention that entire property is a work area "can be asserted by every company, thus effectively destroying the right of employees to distribute literature"). See also Meijer, Inc., 344 NLRB 916, 917 (2005), enfd. in relevant part, 463 F.3d 534 (6th Cir. 2006) (retrieving shopping carts and helping customers load purchases into cars not sufficient to make retail store parking lot a work area). Nor does reliance on the Employer's no solicitation/no distribution policy offer a defense; the Employer effectively modified that policy when it emailed Union counsel prohibiting nonemployee Union organizers from even setting foot on one of its buses for any purpose – well beyond a mere prohibition on the distribution of Union literature. As such, under Stowe Spinning and UPMC, the Employer violated Section 8(a)(1) when it banned nonemployee union agents from boarding its shuttles based on their identity rather than conduct.

II. UPMC was Incorrectly Decided and Should be Overruled.

As the dissent in UPMC explained, Babcock and Wilcox and Stowe Spinning laid out basic anti-discrimination principles the Board is not free to alter. [14] The facts in UPMC are strikingly similar to those of many prior cases where the Board found violations mindful of its duty to adhere to Supreme Court precedent, including North Memorial Health Care, a case the Board decided in 2016. [15] There, union representatives were using a cafeteria “in an orderly non disruptive manner,” by “sitting at tables conversing with small groups of off duty employees.” [16] In finding a violation when the employer ejected them, the Board found that the employer's objection to their presence was based not on their conduct but on the content of their conversations. [17] In fact, “[n]othing distinguished the small, orderly conversations between union representatives and [bargaining] unit members … from other gatherings of cafeteria visitors except for the fact that the [employer] knew that union representatives were present and union topics would likely be discussed.” [18]

Contrast UPMC, where two union representatives sat at two tables in a public cafeteria on which sat flyers and pins, ate lunch, and talked with employees. [19] The Board characterizes this as “promotional activity,” [20] to furnish it with a basis for allowing an employer to prohibit it as "conduct," rather than anything based on the identity of union representatives alone. This attempt to square its decision with the Supreme Court's holding in Stowe Spinning, is flawed and falls flat. The Board's repeated characterization of the presence of the union representatives as engaged in "promotional activity" treats them no differently than a salesperson who has surreptitiously entered the employer's property only to aggressively sell her product or service to unsuspecting individuals sitting down for lunch. But to liken union representatives providing information to employees to salespeople disregards Section 1 and Section 7 of the Act. These statutory provisions, which encourage the practice and procedure of collective bargaining and safeguard employees' rights to talk to nonemployee organizers, are clearly not applicable to the salesperson, making the "promotional activity" characterization inappropriate.

Allowing employers to prohibit nonemployee organizers from accessing public spaces on their property under the guise that this represents some appropriate regulation of the nonemployee organizer's conduct is essentially misleading. In actuality, what UPMC does is to impermissibly narrow the Babcock/Stowe Spinning discrimination exception, a maneuver it is without authority to take. It should be overruled on that basis.

III. The Board's Decision in Kroger also Inappropriately Narrows the Discrimination Standard, and, too, should be Overruled.

The Region should also use this case as a vehicle to urge the Board to overturn Kroger because it, similar to UPMC, impermissibly condones employer discrimination against unions in permitting outside parties to engage in solicitation and distribution on its property. [21] Specifically, Kroger overruled Sandusky Mall Co., 329 NLRB 618 (1999), enforcement denied, 242 F.3d 682 (6th Cir. 2001), where the Board rejected an employer's policy of permitting access based on its own discretion and judgment, resulting in the grant of access for dissemination of a wide array of messages but also in excluding nonemployee union agents from handbilling. [22]

In Kroger, the Board announced a different discrimination standard, namely, finding discrimination against nonemployee organizers only where it can be found that other nonemployees engage in "similar activity in similar relevant circumstances." [23] The Board clarified that the “similar in nature” standard encompasses more than the literal activity engaged in; it also includes the purpose of the activity. Therefore, the Board's decision in Kroger allows an employer to deny access to union agents engaged in the distribution of union literature while allowing other nonemployees access for a wide range of charitable, civic, and commercial activities. [24] Likewise, an employer may ban nonemployee access for union organizational activities if it also bans comparable organizational activities by nonlabor groups.

The dissent in Kroger, citing to Stowe Spinning, explains that, "[s]ingling out union activity for negative treatment—discrimination in its most obvious form—is precisely what the Court outlawed in Stowe, and, until recently, it has never been lawful under the National Labor Relations Act." [25] The dissent further observes,

In the context of discrimination, the employer's bare property right to exclude unwelcome persons is not entitled to weight in the statutory balancing test used to determine access. If statutory rights are to be preserved, mere opposition to statutorily protected activity cannot be a legitimate reason for exercising the property owner's right to exclude an unwelcome person. [26]

The Region is therefore authorized to argue that Kroger be overruled and that the Board return to the definition of discrimination in Sandusky. [27]

Accordingly, the Region should issue a Section 8(a)(1) complaint, absent settlement, alleging that the Employer violated the Act by barring union representatives from using its shuttles. The Region should also urge the Board to overrule Kroger and UPMC to the extent that those cases stand for the proposition that this conduct is not unlawful discrimination, as discussed above.

/s/

R.A.B.

ADV.05-CA-281089.Response.LAZ.​     ​