Management-side labor attorneys often are spoilsports when it comes to outside groups entering company property to peddle their wares.   Many employers think they are being the benevolent boss by inviting cable companies, cell phone providers, charities, etc. onto the company premises and allowing these groups access to their employees.   But if you allow all of these groups onto your property, what happens when the Union organizers show up?  While the NLRB has recognized an exception if the outside groups are very limited (such as allowing for a United Way drive once a year), the general rule is that if an employer allows outside groups access to its property to solicit employees, it must also allow the Union similar access.  

This issue became relevant again in a NLRB case decided last week, Phillips 66.   In that case, the employer owned a tract of land across the street from the company’s facility.   The employer leased the land to a local fire department for its fire station.   The Operating Engineers already represented a small group of the employer’s employees, and the fire department had previously allowed this Union to hold their membership meetings at the fire station.   But the Operating Engineers then made a run at the company’s 340 unrepresented employees, and asked the fire chief if they could have a barbecue and picnic at the station as part of the organizing drive.   The chief initially said yes, but the company objected (it was, after all, the company’s land) and the party was moved elsewhere.

In a unanimous decision, the NLRB found that this violated labor law because the company had discriminated against the Union’s organizing activities while allowing the Union’s regular membership meetings.   The Labor Board seems to take the same tact with Unions that it takes with outside groups – if you allow the Union onto your property to do other “stuff” (like the monthly membership meeting with the group already represented), you can’t discriminate when the Union wants to hold an organizing picnic for your non-union workers.

 Left unanswered by this case is how far the decision reaches.  For instance, Union leaders are often given access to an employer’s property for purposes of administering a collective bargaining agreement (meeting with grievants, etc.) and other representational activity in non-work areas (the employee break room, for example).   Does this decision mean that if the employer permits that type of access to an incumbent Union to administer the CBA, it is also obligated to give the Union access for an organizing drive?  Or is Phillips 66 strictly limited to the unique facts of that case?   Moreover, even if the Union hypothetically had access, can the parties agree in a CBA that any such access for administrating a CBA specifically excludes access for organizing? Is the organizational “right” described in Phillips 66 even subject to employer restrictions in bargaining?

The most cautious route for the employer is to be the marplot and limit Union access to its property as much as possible.   While the reach of Phillips 66 can be debated, it is unlikely that the decision would have come out the way it did if the company had prohibited outside groups (including the Union) from meeting at the fire station in the first place.