Employers Gain Flexibility to Regulate Nonemployee Access to Property under the NLRA
On September 6, 2019, the National Labor Relations Board (NLRB or Board) issued its decision in Kroger Limited Partnership I Mid-Atlantic, 368 NLRB No. 64, and officially rejected the idea that employers that allow civic and charitable organizations to fundraise on their property must also allow nonemployee union agents to solicit on employer property in whatever manner they choose. In light of Kroger, employers may distinguish between those nonemployee activities they will and will not allow based on the nature of the activities.
In Kroger, a three-member Board majority overturned prior precedent to find that a supermarket did not impermissibly discriminate against nonemployee union representatives by ejecting them from the supermarket’s parking lot after the representatives solicited participation in a boycott of the supermarket. The Board reached this result notwithstanding the fact that the supermarket frequently allowed other community and charitable groups (such as the Girl Scouts and the Salvation Army) to solicit donations and sell items on supermarket property.
Under Kroger, impermissible discrimination by an employer with respect to nonemployee activities occurs when activities of the same nature are treated differently. The Board found that a union soliciting participation in a boycott and a Girl Scout troop selling cookies are not engaged in solicitation of the same nature.
Exactly how the Board will define the “nature” of an activity remains to be seen. Yet the Kroger decision strongly suggests that employers may be able to define the sorts of activities they will and will not allow with significant specificity, without running afoul of the National Labor Relations Act. For instance, the NLRB expressly stated in Kroger that an employer may prohibit union access to company property to organize workers without engaging in prohibited discrimination, so long as “comparable organizational activities” by non-labor groups, such as fraternal societies and religion organizations, are also prohibited.
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