Cafeteria Solicitation and Eliminating the Public Space Exception Under NLRB Case Law

Navigating the standards for non-employee access to employer property under the National Labor Relations Act (Act) should become a little easier following the National Labor Relations Board’s recent decision in UPMC Presbyterian Hospital. The decision expressly overruled the Board’s long-standing “public space exception,” which allowed non-employee union organizers access to a portion of the employer’s premises if it was open to the public, as long as the organizers were not disruptive and used the areas in a manner consistent with its intended use. While the decision appears to have farreaching implications, in reality, its impact is likely to be limited, given its language and the fact that organizing in modern times - thirty-seven years after the Board established the public space exception – looks very different. Organizing in a world well versed in smart-phone technology and social media presents challenges not contemplated by current Board case law.