NLRB rules employer can remove labor organizers from its parking lot

The National Labor Relations Board (NLRB) recently issued another decision benefitting employers by holding that an employer does not violate the National Labor Relations Act (NLRA) when it removes from the employer’s parking lot nonemployee union representatives encouraging customers to boycott the employer.

In Kroger Limited Partnership I Mid-Atlantic, nonemployee union representatives entered the parking lot adjoining a Kroger grocery store and solicited its customers to sign a petition protesting Kroger’s decision to close the store and relocate the employees. Kroger called the police and demanded that the union representatives cease their solicitation.

The union filed an unfair labor practice charge against Kroger, stating that Kroger discriminated against the union because it had previously allowed other third parties, such as Girl Scouts and the Salvation Army, to engage in civic solicitations in the same parking lot. The union argued that this disparate treatment interfered with employees’ rights under the NLRA.

An administrative law judge (ALJ) ruled in favor of the union, reasoning that while Kroger has a property right to remove individuals from its leased property, it unlawfully discriminated against the union because it had previously allowed charitable and civic organizations access to its property but denied access to the union.

However, the NLRB overruled the ALJ’s decision and overturned prior precedent by holding that a union’s claim of discrimination concerning an employer providing access to other nonemployees in the past must be based on evidence that the activities are similar in nature. The NLRB reasoned that unlawful discrimination in this context occurs when activities of the same nature are treated differently. Accordingly, the NLRB found that a union soliciting participation in a boycott was not of the same nature as Girl Scout members selling cookies or the Salvation Army seeking donations.

In light of this NLRB decision, employers should review any no-access policies for nonemployees and establish which civic or charitable organizations they want to permit access to without having to grant the same access to nonemployee union representatives.