On Sept. 6, 2019, the National Labor Relations Board (NLRB) granted a significant win to employers, ruling that businesses can lawfully limit the rights of nonemployee union supporters to access company property that is otherwise open to the public. In a 3-1 decision, the Board ruled that Kroger did not violate the National Labor Relations Act (NLRA) when it removed nonemployee union supporters from the parking lot of a Kroger store. The decision overruled a 2016 ruling by an NLRB administrative judge that Kroger had illegally barred two nonemployee representatives of the United Food and Commercial Workers Union from petitioning customers in the parking lot of a store in Portsmouth Virginia. The nonemployee union representatives were there to solicit customer support for the union’s protest over a decision to close the store and relocate employees to a different location 25 miles away.

The administrative law judge who initially heard the case ruled in favor of the union, noting that the grocery store’s managers had previously allowed several charitable entities to distribute literature and sell goods outside the store’s entrance. Applying Sandusky Mall Co., 329 NLRB 618 (1999), the administrative law judge held that Kroger violated the NLRA and discriminated against the union by regularly granting access to company property to civic, charitable and promotional activities by nonemployees while prohibiting nonemployee union representatives from petitioning on company property.

But the Board saw things differently, holding that Sandusky Mall Co. was a flawed and overly broad interpretation of the discrimination principle outlined in the Supreme Court ruling of NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956). In that case, the Supreme Court held in part that employers cannot discriminate against a union’s distribution of literature on employer property if it also allows other forms of distribution.

Returning to a pre-Sandusky Mall standard, the Board held that discrimination as outlined in Babcock means unequal treatment by employers of activities that are “similar in nature.” Under this standard, employers may bar nonemployee access for protest activities on company property while allowing nonemployee access for a wide range of charitable, civic and commercial activates because the two types of activities are not similar in nature.

The Board also held that an employer may ban nonemployee access to public areas for union organizing activities if it bans comparable organizational activities by groups other than unions. “Nonemployee union organizers can communicate their message to employees through non-trespassory means,” the Board stated.

For more information on the Board’s decision in Kroger Mid-Atlantic, Case 05-CA-155160, 368 NLRB 64 (2019), click here.