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Sneak Peek at Union Access Arguments in Labor Board Advice Memo

May 25, 2022, 6:48 PM

The federal labor board’s legal arm said a pair of Trump-era precedents backing employers’ authority to restrict union access runs afoul of legal protections forbidding discrimination against unions.

The National Labor Relations Board general counsel’s office in an advice memo made public Wednesday laid out its basic reasoning for striking down the board’s 2019 ruling in UPMC, which allows employers to bar union representatives from public spaces in their facilities.

The memo also argues for nixing the NLRB’s 2019 decision in Kroger, which gives companies more leeway to boot unions from its grounds.

Although the general counsel’s office ultimately didn’t pursue the case at issue in the advice memo, that directive reveals how top agency lawyer Jennifer Abruzzo and her troops will attack the two NLRB decisions limiting union access when they have the opportunity.

The advice division directs NLRB prosecutors in regional offices on how to approach select cases. The division’s memos aren’t made public until the cases are closed.

The memo on the union access precedents, dated January 2022, involves unfair labor practice charges that were filed against LAZ Parking Mid Atlantic LLC. The company, which does business as LT Transportation, provides shuttle bus services at the MedStar Washington Medical Center and Children’s National Hospital in Washington, D.C.

Union Organizing

Amalgamated Transit Union filed an unfair labor practice charge against LAZ Parking in August 2021, claiming the company unlawfully restricted its agents from boarding the company’s shuttles. The union, which was in the midst of an organizing campaign, won the election to represent the drivers in a vote tallied last month.

That election was the second held, following an earlier vote that was set aside based on employer interference, according to an NLRB notice of election.

The union withdrew the access unfair labor practice charge against LAZ parking, which the NLRB general counsel’s office approved a day before the ballots were mailed out.

Targeting Precedents

The advice memo, issued by Associate General Counsel Richard Bock, said that the Baltimore region should issue a complaint against LAZ Parking. That complaint should argue for overturning UPMC, which eliminated the public space exception to an employer’s right to eject union agents from their property, Bock said in the memo.

LAZ Parking’s “bus shuttles are essentially no different than the cafeteria at issue in UPMC” in that they’re open to the public, the memo said.

UPMC conflicts with the US Supreme Court’s 1949 decision in NLRB v. Stowe Spinning and its 1956 ruling in NLRB v. Babcock & Wilcox, according to the memo. Those rulings established that an employer can’t discriminate against unions in allowing access to their property.

The region should also argue for overturning Kroger, which similarly condones employer discrimination against unions, the memo said.

LAZ Parking’s attorney, Jeffrey Corradino of Jackson Lewis PC, was unable to immediately comment. Amalgamated Transit Union’s lawyer, Christopher Bangs, didn’t respond to requests for comment on the case.

The case is LAZ Parking Mid Atlantic d/b/a LT Transportation, N.L.R.B. Gen. Coun. Advice Memo., Case 05-CA-281089, advice memo made public 5/25/22.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Genevieve Douglas at gdouglas@bloomberglaw.com