Earlier this year, the Office of the General Counsel (GC) of the National Labor Relations Board (Board) issued an Advice Memorandum in Case 05-CA-281089 instructing Board Region 5 to issue a complaint alleging that the employer, LT Transportation (a shuttle bus transportation provider), violated Section 8(a)(1) of the National Labor Relations Act, when it banned nonemployee union organizers from boarding its shuttles because of their identity as union organizers. The GC also directed the Region to use the case as a vehicle to argue that that two Board precedents, UPMC, 368 NLRB No. 2 (June 14, 2019) and Kroger, 368 NLRB No. 64 (2019), should be overruled because, in the view of the GC, they narrowed employee rights set forth in two U.S. Supreme Court cases, NLRB v. Stowe Spinning Co., 336 U.S. 226, 233 (1949) and NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956).
In Stowe, the United States Supreme Court held that an employer violated Section 8(a)(1) of the Act by discriminating against nonemployee union organizers when it permitted outside community groups to use a meeting hall on the employer’s private property, but prohibited nonemployee union organizers from using the same meeting hall. In Babcock, the Supreme Court formally established a framework for analyzing whether an employer has unlawfully excluded nonemployee union representatives from its private property, which included the discrimination exception established in Stowe.
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