NLRB Expands Employers' Rights To Deny Property Access To Nonemployee Union Activists
Last week, the National Labor Relations Board (the "Board") continued to adjust the balance of employer and union rights under the National Labor Relations Act (the "NLRA" or the "Act"), in a manner favorable to employers.
In Kroger Limited Partnership I Mid-Atlantic, 368 NLRB No. 64 (Sept. 6, 2019), the Board overturned a 20-year precedent requiring employers who allow non-union third parties onto their property to grant equal property access to union representatives. The case comes on the heels of the Board's recent rulings allowing employers to exclude nonemployee union organizers from public areas of employer property, and to prohibit off-duty contractor employees from protesting on employer property.
The Board long has held that a property owner generally must permit its own employees to engage in protected conduct - including union-related solicitation- during nonworking time and in non-work areas. In certain circumstances, this employee right includes access to employer property to engage in protected conduct even while the employee is off-duty.
The Board traditionally has extended employers much more flexibility to prohibit nonemployee union organizers from solicitation on employer property. Until June 2019, under NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), and subsequent related cases, employers generally were not required to permit nonemployee union-related solicitation on employer property, with three limited exceptions:
- Pursuant to the "inaccessibility" exception, employers have been required to permit nonemployee organizers on employer property where this is the only reasonable means of communicating with employees (e.g., remote logging camp, mountain resort).
- Under the "discrimination" exception, an employer was required to allow nonemployee union solicitation if the employer permitted other third party solicitation. In Sandusky Mall Co., 329 NLRB 618 (1999), enf. denied in relevant part 242 F.3d 682 (6th Cir. 2001), the Board expanded the discrimination exception to require nonemployee union access to an employer's property if the employer has allowed "substantial civic, charitable, and promotional activities" by other nonemployee parties.
- Under the "public space" doctrine, employers were obligated to permit nonemployee union organizers access to portions of an employer's property open to the public - such as cafeterias - as long as the organizers were not being "disruptive." Montgomery Ward & Co., 256 NLRB 800 (1981), enfd. 692 F.2d 1115 (7th Cir. 1982).
In May 2019, the current Board first signaled its intention to set new standards for nonemployee union access to employer property when it announced its plan to use rulemaking to address union organizing on employer property. Shortly thereafter, in UPMC Presbyterian Shadyside, 368 NLRB No. 2 (June 14, 2019), the Board eliminated the "public space" exception described above, holding that a hospital did not violate the NLRA by prohibiting nonemployees from conducting organizing activity in a hospital cafeteria open to employees, patients, patient visitors, and other hospital patrons.
In late August, the Board issued Bexar County Performing Arts Center Foundation, 368 NLRB No. 46 (Aug. 23, 2019), holding that a property owner may lawfully prohibit off-duty employees of a contractor or licensee from leafletting on the property. The Board majority reasoned that "contractor employees are not generally entitled to the same Section 7 access rights as the property owner's own employees."
In last week's Kroger decision, the Board continued to chip away at nonemployee union access to employer property by overturning Sandusky Mall and significantly narrowing the discrimination exception.
The Kroger Case
In the Kroger case, the Board addressed an administrative law judge's ("ALJ") ruling that Kroger violated the Act by summoning law enforcement to remove a nonemployee union representative from the store parking lot. The representative was soliciting the signatures of Kroger customers on a petition opposing the transfer of Kroger employees from the store at issue, which was scheduled for closure, to other stores outside the geographic area. The ALJ applied Sandusky Mall to find the employer's removal of the union representative unlawfully discriminatory because Kroger had permitted other nonemployee groups, such as the Boy Scouts, the Girl Scouts, and the Salvation Army, to solicit on Kroger property.
Relying on the fact that "Sandusky Mall and its progeny have been roundly rejected by the courts of appeals," the Board majority rejected the broad interpretation of the discrimination exception set forth in Sandusky Mall, writing that the ruling was unsupported by property law and "improperly stretched the concept of discrimination well beyond its accepted meaning in a manner that finds no support in Supreme Court precedent or the policies of the Act."
The Board established a new standard under which an employer unlawfully violates the discrimination exception only where the "employer denied access to nonemployee union agents while allowing access to other nonemployees for activities similar in nature to those in which the union agents sought to engage."
In finding Kroger's removal of the union protester not unlawfully discriminatory, the majority distinguished the union protester's conduct from the "charitable, civic and commercial activities" in which Kroger allowed other nonemployee organizations to engage on its property. In the majority's view, these activities were not "similar in nature," so that permitting the latter did not preclude the employer from prohibiting the former. Kroger had never "permitted any nonemployees, whether affiliated with a union or not, to engage in protest activities on its premises comparable to the boycott solicitation at issue in this case."
In a footnote, the majority further explained the "similar in nature" standard, writing that the new standard:
encompasses more than the literal activity engaged in; it also includes the purpose of the activity. For example, distributing handbills near the entrance to a grocery store to advertise a food drive for the local food bank, and distributing handbills to appeal to shoppers to boycott the store because it sells genetically modified foods, involve the same activity of distributing handbills; but the distributions are not similar in nature because the purposes behind the two distributions are radically different. (Emphasis in original.)
The Kroger ruling gives employers additional flexibility to enforce policies prohibiting nonemployee solicitation on their property, even while permitting fundraising activities by other charitable and civic organizations. However, employers should carefully assess their nonemployee access practices, and confer with experienced labor counsel, before enforcing no-solicitation policies against nonemployee union representatives, where they may have granted access to other outside groups for activities that are similar in nature.
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If you have any questions about nonemployee union access to employer property, or any other labor relations issues, please feel free to contact one of our experienced labor attorneys, who regularly assist employers with all types of union-related and NLRA compliance issues.